ORLANDO R. REBAGLIATI - OAS - Organization of American ...

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FUNCTIONS AND POWERS OF THE U.N. SECURITY COUNCIL ANDTHE O.A.S. IN RELATION TO THE MAINTENANCE OF

INTERNATIONAL PEACE AND SECURITY

ORLANDO R. REBAGLIATI *

* Attorney from Argentina. Member of the Inter-American Juridical Committee. Ph.D. inLaw and Social Sciences. This class was delivered on August 2000, during the XXVIICourse of International Law.

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TABLE OF CONTENTS

I. Introduction. The Legal Framework

II. Issues arising from the relationship between the United NationsSecurity Council Functions and Powers and those of the O.A.S

1. Competence related to the peaceful settlement of disputes

1.1. The Regionalis approach 1.2. The Universalist approach

1.3. Cases before the Security Council

a) Guatemala 1954b) Cuba 1960c) Haiti 1963d) Panama 1964e) Panama 1973f) Malvinas 1982g) Nicaragua 1983

2. Competence in respect to enforcement measures

2.1 .The term enforcement measures2.2. Opportunity in which the Authorization is to be given2.3. Formalities required for the authorization2.4. Enforcement Measures and Provisional Measures2.5. Cases before the Security Council

a) Dominican Republic 1965b) Cuba 1962

c) Cuba 1964 d) Dominican Republic 1963

e) Grenada 1983f) Haiti 1991-94

III. Conclusions

1. General Observations2. Evolution registered in respect to the central issues of the relationship3. Prospects

IV Select bibliography

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I. Introduction: The legal framework

In order to properly examine the relationship existing between the SecurityCouncil’s Functions and Powers and those of the Organization of American Statesin respect to the maintenance of international peace and security, let us first of allrecall that this concern is the fundamental purpose embodied in the Charter of theUnited Nations, Article 1, without prejudice to other important goals pursued by theConstitution of the World Organization.1 As it has been said, “The United Nationswas the result of the determination of the allied powers to establish an effectivemechanism for preventing a repetition of the disastrous events which scourged theworld from 1939 to 1945. The dominating idea in the mind of every one at the SanFrancisco conference was that such a catastrophe must never occur again and toconvert this idea into a living reality, international peace and security should bemaintained by stable and lasting means. At that time the premise was agreed uponthat international peace is indivisible, and that to maintain it effectively there mustexist some supreme authority.”2

In order to achieve this fundamental purpose, it can be noted that two principalavenues were foreseen, and even enunciated in Conjunction with the proclamationof such purpose in article 1 (1) of the U.N. Charter “... and to that end: to takeeffective collective measures for the prevention and removal of threats to thepeace, and for the suppression of acts aggression or other breaches of the peace”,and to bring about by peaceful means, and in conformity with the principles ofjustice and international law, adjustment or settlement of international disputes orsituations which might lead to a machinery able to provide for: a) Enforcementaction, it is to say, ways devised for application of measures required for a “non-pacific” settlement of disputes or at least to obtain that such disputes remain in astate of “pacific non-settlement” and b) Peaceful Settlement of Disputes.3

1 Eduardo Jiménez de Aréchaga, Derecho Constitucional de las Naciones Unidas,Madrid, 1958, p.36.2 Manuel Canyes, “The Organization of American States and the United Nations”,Washington, 1963, pp. 44/45.3 Two clarifications need to be made for proper understanding of our work. First thatgenerally we will indistinctly be referring to disputes, situations and related terms, thoughthe U.N. Charter do make sometimes the distinction, mainly as far as the jurisdiction of itsorgans and the procedure to be followed are concerned. This is because in any case theCharter is dealing with those disputes, situations, etc., only when they concerninternational peace and security. Furthermore the provisions contained in Chapter V of theO.A.S. Charter and in the Pact of Bogota only refer to the pacific settlement of “disputes”,and the provisions of Chapter VI of this “acts”, “facts” or “situations” that endangerpeace. Second, that in relation to peaceful settlement of disputes, we will only deal withthose which endanger or are likely to endanger international peace and security, thoughthe Inter- American System provides for means of pacific settlement of all disputes, as wewill see below. As may be understood we must confine our work, to those disputes whichmay affect international peace and security because only in respect to them relationshipbetween the U.N. and the O.A.S. arises.

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In this connection, it is to be recalled that the United Nations Charter dealswith those functions mainly in Chapter VI “Pacific Settlement of Disputes” and inChapter VII “Action with respect to Threats to the Peace, Breaches of the Peaceand Acts of Aggression”. Chapter VIII on its part deals with the role of RegionalArrangements in this field of maintenance of international peace and security4

providing for the link between the U.N. and the regional agencies both inconnection with peaceful settlement of disputes and enforcement action, andestablishing the conditions under which those regional agencies are to performtheir activities in this respect. In this brief revision of the relevant legal frameworkof the United Nations Charter, let us refer last but not least to Article 24 whichheading the paragraph of Chapter V corresponding to “Functions and Powers ofthe Security Council”, summarizes the role that this organ is to perform accordingto the above mentioned Chapters VI, VII and, VIII, stating that: “In order toensure prompt and effective action by the United Nations, its Members confer onthe Security Council primary responsibility for the maintenance ofinternational peace and security...”(emphasis added). Since the scope of ourstudy is confined to the relationship between functions and powers of this organ ofthe U.N. (though some reference may eventually be made to other bodies of theworld organization) and those of the O.A.S. in the maintenance of internationalpeace and security, we will now also briefly review the later legal framework,departing from the uncontested premise that this organization is a regional agencyin the sense of Chapter VIII of the U.N. Charter.

We will call this framework the Inter-American System since it is composedby the following three interrelated treaties: the O.A.S. Charter, the AmericanTreaty on Pacific Settlement (Pact of Bogota) and the Inter-American Treaty ofReciprocal Assistance (Rio Treaty).

Logically, the O.A.S. Charter constitutes the basic instrument of the systemand besides declaring in Article 1 that “Within the United Nations, theOrganization of American States, is a regional agency” provides – inter alia – forthe necessary regional machinery regarding “Pacific Settlement of

4 It is widely recognized that consistently with the U.N. Charter philosophy and letter(Art. 52) regional agencies envisaged in this Chapter must be capable to deal with matters“relating to international peace an security” and that this is one of the clear conditions ofthe Charter to consider them as such. Again, let us reiterate that this capability should beunderstood in connection with the two elements involved; machinery for: a) peacefulsettlement of disputes, and b) enforcement action. Cf. José M. Ruda, “Relaciones de laO.E.A. y la U.N. en cuanto al mantenimiento de la paz y seguridad internacionales”, RevistaJurídica de Buenos Aires, 1961, p.25; Antonio Gómez Robledo, “El Tratado Interamericanode Asistencia Recíproca”, II Curso de Derecho Internacional, CJI, 1975, p. 365; JorgeCastañeda, “Conflictos de competencias entre las Naciones Unidas y la Organización deEstados Americanos”, Foro Internacional, 1965, p. 547; Domingo Acevedo, “Las NacionesUnidas y el arreglo de controversias internacionales entre Estados miembros de la OEA”,XIV Curso de Derecho Internacional, CJI, 1987, p. 174; N.D. White, The Law ofInternational Organisations, Manchester, 1996, p. 203; J.C. Merrills, International DisputeSettlement, Cambridge, 1998, p. 281.

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disputes”(Chapter V) and “Collective Security”(Chapter VI). It is to say, providesfor means able to maintain international peace and security, of course from theregional perspective and under appropriate co-ordination with the United Nations.Procedures to achieve pacific settlement of Inter-American disputes are expandedin detail in the Pact of Bogota (concluded at the same Ninth Inter-AmericanConference that elaborated the Charter in 1948) which also restates the generalprinciples set forth by the Charter in Chapter V saying that all internationaldisputes that may arise between American States shall be submitted to the regionalpeaceful procedures, before being referred to the Security Council of the UnitedNations.5 As may be recalled the Pact of Bogota was explicitly contemplated inArticle 27 (formerly art. 26) of the O.A.S. Charter which stated that “A specialtreaty will establish adequate procedures for the pacific settlement ofdisputes...”after enumerating them in article 25 (formerly art. 24: directnegotiation, good offices, judicial settlement, etc.).

Chapter VI of the O.A.S. Charter referred to “Collective Security” gives tothe Inter-American System the capabilities of meeting the requirements to applyenforcement measures in the sense of those referred to in Chapter VII of theU.N. Charter, and of exercising the right of collective self-defence provided for inArticle 51 of the U.N. Charter.6 It is known that this Chapter VI took into accountthe Rio Treaty which had been already signed in 1947 and that it is this instrumentthe one which in a similar way to the Pact of Bogota, expands the Charterprovisions, in this respect concerning action to be taken by State Members for themaintenance of peace and security in the region in cases other than those in whicha peaceful settlement of dispute procedure is applied.7 This action can take theform of “recall of chiefs of diplomatic missions, breaking of diplomatic relations,breaking of consular relations, partial or complete interruption of economicrelations or of rail, sea, air, postal, telegraphic, telephonic and radiotelegraphic

5 Former art. 23 of the O.A.S. Charter contained a similar provision until it was modifiedby the Cartagena Protocol of 1985. For an analysis of the impact of this reform on the issuewe are studying, see infra III.2.6 We will not be dealing with the right of collective self-defense since this is not aquestion necessary related to the U.N.- Regional Organization Relationship. It happens tobe that the Inter-American System includes a collective self- defense agreement, but this isnot the feature that qualify the O.A.S. as a regional agency. Collective self-defense (as wellas individual, of course) is governed by Article 51 of the U.N. Charter, as we know.Conditions for application of enforcement measures under Chapter VIII are a differentquestion and it is in this respect that we will study the U.N. Security Council - O.A.S.relationship. Incidentally, let us anticipate that in this interplay related to action taken bythe O.A.S., the regional organization never invoked article 51 of the U.N. Charter andresorted to other basis for struggling for its autonomy vis-à-vis the Security Council.7 It should be noted, however, that the Rio Treaty also provides in Article 2 for peacefulsettlement of controversies among American States “by means of the procedures in forcein the Inter-American System”, and that the Pact of Bogota in Article VIII states that:“Neither the recourse to pacific means for the solution of controversies, nor therecommendation of their use, shall in the case of and armed attack be ground of delayingthe exercise of the right of the individual or collective self-defense, as provided for in theCharter of the United Nations.”


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communications; and use of armed force”, according to Article 8 of the RioTreaty. As it has been said in respect to this instrument, “in a way, it can beregarded as the Inter-American equivalent to Chapter VII of the United NationsCharter.”8

In short, we have tried to briefly refer to the legal framework concerning ourstudy, making reference to relevant provisions or sections of the four instrumentsrelated to this relationship between the United Nations Security Council Functionsand Powers and those of the O.A.S. in the field of maintenance of internationalpeace and security. This reference presupposed the knowledge of the content ofthose treaties and its only purpose is to focus our attention within a particularframe of legal norms whose interplay, we will consider below. A descriptiverelation of the U.N. Charter and the Inter-American Treaties in this Chapterwould fall outside the scope of a work of this nature and even in some caseswould overlap our further discussion. Be therefore sufficient, this summarizedintroduction to the role of the two organizations in relation to the maintenance ofinternational peace and then after having also stressed the two elements whichcompose this concept, let us now consider in the following Chapters the issueswhich arise from the relationship between the role of the U.N. Security Counciland those of the Organization of American States.

II. Issues arising from the relationship between the United NationsSecurity Council Functions and Powers and those of the O.A.S

As it has been expressed above, the maintenance of international peace andsecurity involves two main functions. The existence of a system able to provide forpeaceful settlement of disputes and the establishment of a machinery capable toapply enforcement action, it is to say for a non-peaceful settlement of disputes orat least capable, to ensure that disputes remain in a state of “pacific non-settlement”.

Precisely in considering the interplay related to the respective functions inthese two fields by the United Nations Security Council and by the O.A.S., iswhen the two central issues concerning such relationship arise. Let us therefore inturn to each of them and us try to find out how this relationship can work out.9

In our study of the topic we will first refer to the analysis of the relevantprovisions embodied in the U.N. Charter and in the Inter-American instruments,and we will also refer immediately after each legal analysis of the questions, tocases constituting the U.N. Security Council - O.A.S. practice in this field. In

8 Aida Levin, “The O.A.S. and the U.N.: Relations in the Peace and Security Field”, NewYork, 1974, p. 19.9 I.L. Claude in “The O.A.S., the U.N., and the United States”, International Conciliation,1964, p. 18 observes “the problem of working out an acceptable relationship between theU.N. and the O.A.S. in relation to these two issues were foreshadowed in the controversiesthat raged at the San Francisco conference of 1945”.

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marking this references, however and to limitations of a work of this type, wewould have to omit a number of details especially those connected with factualelements and we will concentrate rather, in the legal consideration of those caseswith due regard as well to political factors involved.

1. Competences related to the peaceful settlement of disputes

As we pointed out in our Introduction we will only be considering thosedisputes that in the language of article 33 of the U.N. Charter, “the continuance ofwhich is likely to endanger the maintenance of international peace and security”,since these are the only concerned with the U.N. system. On its part the Inter-American system is of course also concerned with such kind of disputes but itdeals as well with others not related to international peace and security.10 Inrespect to this latter category, consequently there is no problem of relationship andconsequently they are not relevant to our work.

Let us then advance the central issue which poses the relationship underconsideration, namely that which arises in considering if a member of the O.A.S.party to a dispute with another member of the regional agency (all of them happento be members of the U.N., as well) a) can choose to refer such a dispute whetherto the Security Council or the competent organ of the O.A.S., seeking a peacefulsettlement, or b) has to resort first to the regional agency before referring it to theSecurity Council. In other words: Do members of the O.A.S. have a direct resortto the U.N. Security Council or do they have such resort only after havingsomewhat exhausted the regional instance? And, by the same token, a relatedquestion arises: is there an obligation for the U.N. organs to submit local questionsto the regional systems?11 These are the main questions that arise in this contextand can be understood under the concept of priority of regional procedures, or“Try O.A.S. first”, as some authors have called it.12

To deal with this matter we will summarize below legal arguments: 1)Favouring the resort to the O.A.S. as a first instance, and 2) Advocating for adirect resort to the Security Council if the O.A.S. member concerned wishes toomit the regional instance. For purposes of simplification we would refer to thesetwo types of approaches as Regionalist and as Universalist respectively.

10 Article 24 of the O.A.S. Charter and art. II of Pact of Bogota refer to the peacefulsettlement of disputes without qualifying them as art. of U.N. Charter , Article 2 of RioTreaty makes similar reference to that O.A.S. charter and the Pact of Bogota and even saysall disputes.11 Alberto Herrarte, “Solución pacífica de las controversias en el sistemainteramericano”, VI Curso de Derecho Internacional, CJI, 1979, p. 228.12 I.e. Claude, op. cit.: Gordon Connel- Smith, The Inter-American System, London, 1966.


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1.1. The Regionalist approach13

Legal reasoning put forward by this theory can be condensed as follows:

a) Chapter VIII of the U.N. Charter and in particular Article 52 (1) wereclearly designed to recognize the existence of regional arrangements or agenciesfor dealing with such matters relating to the maintenance of international peaceand security as are appropriate for regional action. It would be inconsistent toproclaim this recognition and at the same time that members States of the regionalorganization by virtue of the U.N. Charter can ignore the role conceived for thefirst and resort directly to the world organization. If that had been the case noChapter VIII would have been required. In this case nothing would have precludedthe existence of arrangements providing for residual competences for dealing withsuch cases which were not to be considered by the U.N.

b) More precisely Article 52 (2) imposes a clear-cut obligation upon membersof regional organizations “to make every effort to achieve pacific settlement oflocal disputes through such regional arrangements or by such regional agenciesbefore referring them to the Security Council”, which is self-explanatory.

c) This obligation is concurrent with other regulating the Security Councilfunctions. In effect Article 52 (3) supplementing the above mentioned provisionindicates that “The Security Council shall (emphasis added) encourage thedevelopment of pacific settlement of local disputes through such regionalarrangements or by such regional agencies” etc.

d) Article 33 of the U.N. Charter explicitly enumerates the resort to regional

13 For constructions following this approach see Felipe Paolillo “Regionalismo y AcciónCoercitiva Regional en la Carta de las Naciones Unidas”, Anuario Uruguayo de DerechoInternacional, 1962; J. J. Caicedo Castilla, El Derecho Internacional en el SistemaInteramericano, Madrid, 1960; José María Yepes, quoted in Herrarte, op. cit., p. 229; F.V.García Amador, cited in Acevedo, op. cit., p. 190; Waldemar Hummer - Michael Schweitzer,“Article 52”, en Bruno Simma (ed.), The Charter of the UN: A Commentary, Oxford, 1994, p.709. In this context it is relevant to recall that at the San Francisco Conference – CommitteeIII (4) – the Peruvian representative articulated his concern that the compromise which hadbeen reached did not clearly preclude the Security Council from asserting jurisdiction overintra-regional disputes at any stage, he was disappointed that the exclusiveness of regionalresponsibility for dealing initially with local disputes had not been safeguarded. ThePresident of the Committee, speaking for Colombia, offered reassurance and expressed thathe saw no problem of double jurisdiction, but he believed that the newly adoptedprovisions established the rule that the Security Council must leave initial efforts atpeaceful settlement of local disputes to regional agencies. I. Claude (op. cit. p. 11)commented the interpretations saying: “The Peruvian comment was more accurate than theColombian... An ambiguous compromise had been reached, allowing champions ofregionalism to assert that they had won a clear victory for the autonomy primacy ofregional agencies, and universalists to congratulate themselves that the supremacy of theSecurity Council in matters affecting peace and security had not been impaired”.

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agencies or arrangements when it says that members shall (emphasis added) seeksolution of their disputes through procedures therein mentioned, and this provisionread in conjunction with those previously quoted leads obviously to the thesis ofregional priority in handling disputes among members of the agency.

e) Moreover that submission is confirmed by article 37 (1), since this provisionindicates that members to a dispute of the nature referred to in Article 33 shallrefer it to the Security Council, should they fail to settle it by means indicatedin that article (emphasis added). Regional agencies, as indicated in (d) above isone of these means of article 33 and it is therefore clear that parties to a disputeare to refer it to the Security Council failing settlement through the regionalarrangement because they had to deal first within the regional context.14

f) Coming to the reference made by Article 52 (4) to articles 34 and 35 it istrue that article 34 of the U.N. Charter provides that the Security Council mayinvestigate any dispute, or any situation which might lead to international friction orgive rise to a dispute, in order to determine whether the continuance of the disputeor situation is likely to endanger the maintenance of international peace andsecurity and that Article 35 states that any member (and provided some conditions,oven non members) may bring any dispute or any situation of the nature referredto in article 34 to the attention of the Security Council. But these provisions shouldbe construed as meaning that being the case that the regional agency is dealingwith the local dispute, what the Security Council can only do is to investigate ifsuch matter by its continuation can lead to a controversy likely to endanger themaintenance of international peace and security, and in doing so, will proceedwhether on its own initiative (art. 34) or on the request made by any membercountry (art. 35). Precisely, what member countries can only ask in those cases, isthat the Security Council exercises its investigation powers and not others. Now ifthe Security Council concludes after its investigation that there exists a danger tointernational peace and security which overflows the regional orbit, then in canfully assume its competences under Chapter V of the U.N. Charter. If this is notthe case, the Council should refrain from any handling of the situation whileregional procedures are dealing with it.15

g) It is also true that article 24 of the U.N. Charter provides that Members ofthe world organization confer on the Security Council primary responsibility for themaintenance of international peace and security, but it should be noted that primarydoes not mean that this responsibility rests only on the Security Council. In otherwords there is also responsibility to that effect which lies on regional organizations

14 Hummer-Schweitzer, in their contribution to Simma’s commentary on the U.N. Charter,affirm that the principle of subsidiarity of the resort to the Security Council as contained inarticle 34 is substantially reinforced by Chapter VIII; therefore, even a serious attemptwould not be sufficient, and a matter devolves to the Council only in the event thatregional dispute-settlement instruments do not produce success in mediation despite theparties’ best possible efforts (op. cit., p. 710).15 Paolillo, op.. cit. p.217/218; Yepes, loc. cit.; Hummer-Schweitzer, op. cit., p. 709


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as provided for by Chapter VIII, or which falls under the General Assembly asdemonstrated by United for Peace Resolution16 and even under individual Statesacting on their own or collectively in exercising the right of self -defense accordingto article 51.17 Consequently, a restriction of Security Council jurisdiction which iscontained in Chapter VIII cannot be invalidated by the mere reference to article24.18

h) Article II of the Pact of Bogota and 2 of the Rio Treaty impose members ofthe O.A.S. the obligation to submit disputes among them to procedures conductedunder the regional agency provided for by those instruments, before referringsuch disputes to the United Nations Security Council.

i) It is incorrect to assume that in case of aggression, Chapter VII comes intoplay rendering art. 52 inapplicable. This is so because jurisdiction depends not onthe type of or reason of the conflict, but rather on the nature of the anticipatedmeans of settlement.19

1.2. The Universalist approach

Legal arguments supporting this conception can be summarized as follows20:a) Article 52 (4) of the U.N. Charter clearly states that regional procedures

mentioned in its preceding paragraphs can in no way impair application of article34 and 35. Functions and rights recognized by those two latter provisions areexpressly safeguarded and therefore this implies to any interpreter their superiorityin respect to the others. 16 G.A. Resolution 377 (V) of 3 November 195017 Paolillo, op. cit., p. 213/214 . It should be clarified , however , that this argument is putforward by the author rather as an example of non absolute recognition of centralisation oruniversalism, than in the context of the problem related to the peaceful settlement ofdisputes . In any case however is intended to deny exclusive or excluding competence ofthe Security Council .18 Hummer-Schweitzer, op. cit., p. 708.19 Id., p. 713.20 For constructions following this approach see Ruda, op. cit.; Claude, op. cit.; ConnellSmith, op. cit., Jiménez de Aréchaga, “La coordination des systèmes de lÓNU et delÓrganisation des États Américains pour le règlement pacifique des différends et lasécurité collective”, Recueil des Cours de la Académie de la Haie de Droit International1964-III, p.419/456; Ronald St. J. McDonald, “Relaciones crecientes entre las NacionesUnidas y la Organización de Estados Americanos”, Boletín Mexicano de DerechoComparado, 1969; Sergio González Gálvez, “El caso de las Malvinas como un ejemplo de lavalidez de la tesis del regionalismo compatible”, Anuario Jurídico Interamericano, 1982, p.148; Antonio Remiro Brotóns, Derecho Internacional, Madrid, 1997, p. 967; Nguyen QuocDinh et al., Droit International Public, Paris, 1999, p. 819; Castañeda, op. cit., p. 549;Acevedo, op. cit., p. 205; Luis Marchand Stens, “La interrelación jurídica entre la ONU y laOEA”, XXIV Curso de Derecho Internacional, CJI, 1997, p. 88; Merrills, op. cit., p. 283;Marco G. Monroy Cabra; “Solución de controversias en el sistema americano”, en ManuelRama-Montaldo (ed.), Liber Amicorum Eduardo Jiménez de Aréchaga, Montevideo, 1994,p. 1203.

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b) Article 34 and 35 precisely consecrate the possibility of direct considerationby the security Council, whether acting on is own (Art. 34) or under the initiativeof any member of the United Nations (Art. 35 1) which may bring to itsattention any disputes, or any situation of the nature referred to in article 34(emphasis added). Now, if any member of the United Nations enjoys this right, it islegally untenable that members of the U.N. which happen to be members of theO.A.S. can be denied of such a right. Furthermore how can the exercise of adirect resort be consistently ignored if proper consideration is given to right of non-members of the U.N. in this respect Art. 35. 2) and functions in the same fieldgiven to the general Assembly (Art. 11.2) and to the Secretary General (Art. 99).

c) In this connection, but also related to the whole interplay of U.N. Charter -Inter-American Instruments, it is to be recalled that Article 103 of the firstmentioned Treaty provides that “In the event of a conflict between the obligationsof the Members of the United Nations under the present Charter and theirobligations under any international agreements, their obligations under the presentCharter shall prevail.” The O.A.S. Charter (Article 131; formerly 137), and theRio Treaty (Article 10) go even beyond and not only safeguard obligations ofAmerican Sates under U.N. Charter but also their rights.

d) This subordination to the U.N. Charter given by the above mentionedprovisions should also be taken into account when considering former article 23 ofO.A.S. Charter and articles II of Pact of Bogota and 2 of Rio Treaty whichprescribe that American States shall resort to the regional agency peacefulsettlement of disputes procedures before referring such disputes to theSecurity Council. If this latter phrase is to be applied as preventing a direct resortto the Security Council, then that requirement of the inter-American treaties is inconflict with the U.N. Charter. For reasons which were explained in subparagraphc) above, it is needless to argue about the validity of such a requirement.

e) Direct authority of the Security Council cannot be contested if Article 24 ofthe U.N. Charter is to be rightly interpreted. It is true under article 52 (3) “TheSecurity Council shall encourage the development of pacific settlement of localdisputes through regional agencies...” etc. But the article goes on and says “eitheron the initiative of the States concerned or...”21

f) Now, having due regard to article 24, it cannot be claimed that the SecurityCouncil in the case of a regional dispute has to proceed necessarily in the wayprovided for in article 52 (3). Depending on its own judgement the Security Councilmay well decide to do so but regional arrangements are not the only way to handlethe disputes. It is mentioned as one the possible means on equal footing with othersin Article 33. Therefore the Security council, based on its primary responsibilitycan recommend to the parties other procedure drawn from article 33 (2). It canalso decide to undertake an investigation according to article 34 and again

21 Ruda, op. cit. p.40.


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according to its own judgement in assessing the danger for the maintenance ofinternational peace and security involved can decide to recommend to any otherprocedure for peaceful settlement, according to article 36 or even can decide torecommend the terms of settlement as provided for in Article 37 (2) in fine, as itconsiders appropriate (emphasis added). And it is also clear that if the partiesso parties so request (regardless their membership to a regional agency) theSecurity Council can also make recommendations to them with the view to apacific settlement of the dispute (article 38). All these functions and powersconsidered together with the premise set forth in article 24 and the legalsubordination of the Inter-American Treaties to the U.N. Charter, to which wehave referred before, leave no doubt about the lack of legal validity of the “TryO.A.S. First” principle.

g) Moreover, it should be kept in mind that chapter VII powers are by nomeans limited by the provisions contained in chapter VIII; in other words,whenever the Security Council considers that a situation involves a breach to thepeace a threat to the peace or an act of aggression, the Security Council retainsfull powers regardless of the competence regional organizations may have on theaffair.22


a) Guatemala 1954

On 19th June 1954 Guatemala simultaneously appealed to the Inter-AmericanPeace Committee and to the U.N. Security Council requesting the necessarymeasures to halt the aggression which was taking place against this country,launched from neighbouring Honduras and Nicaragua through invader forceswhich were predominantly Guatemalan in composition and led by the Guatemalanexiled colonel Castillo Armas. The government of Guatemala in a more veiledmanner also suggested that support to those irregular forces was also being givenby the United States.23 The following day Guatemala requested suspension ofconsideration of its complaint by that O.A.S. organ and on 21st June asked for acomplete withdrawal of the case from it, in order to allow full U.N. SecurityCouncil handling of the case. This body held two meetings on the subject on 20thJune and on 25th June 1954 in which the jurisdictional issue produced a fulldebate.24

22 This argument, which is the counterpart of argument i) of the Regionalist approach,has been proposed inter alia by Acevedo, op. cit., p. 205 and González Gálvez, loc. cit.;and was one of the views forwarded by Guatemala in 1954, as we shall see infra.23 After his retirement, President Eisenhower wrote that the anti-Arbenz force hadinvaded Guatemala from Honduras, and that he had supplied the force with aircraft duringthe invasion, trough a third country, thus co-operating “in providing indirect support to astrictly anti-Communist faction”; Mandate of change, 1953-56, Garden City, Doubleday1963, pp. 425/426.24 SCOR 675th and 676 Mtgs. 9th Yr. Suppl for April, May and June, 1954.

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At the 675th meeting of the Security Council held on 20th June 1954, the twoLatin-American members of this organ (Brazil and Colombia) introduced a draftresolution which would have referred the case to the O.A.S., and asked for areport to the Council on the measures taken by the regional agency. Brazil notedthat regional settlement of disputes was a ”tradition” in the Inter-Americansystem, and remarked that Article 52 (3) of the U.N. Charter provided that theSecurity Council should encourage use of the regional forum. Colombia stressedthat under Article 52 (2) and 33, members of the O.A.S. had “the duty to applyfirst to the regional organization, which is of necessity the court of first appeal”.The U.S. did not insist much on legal arguments but also mentioned Article 52 (2)in supporting the draft resolution. In doing so, this representative also resorted topractical grounds posing the question of “where the situation can be dealt withmost expeditiously and most effectively” and saying that the “draft resolution doesnot seek to release the Security Council of responsibility; it just asks the O.A.S. tosee what it can do to be helpful”. However, and despite these moderate remarks,the representative of the United States went a little further when he came to thepolitical implications, and asserted that the anticipated Soviet veto of the Brazilian-Colombian draft would show “that the Soviet Union has designs on the Americanhemisphere” and addressing to the delegate of this country added “Stay out of thishemisphere and do not try to start your plans and your conspiracies over here”.

The representatives of Honduras and Nicaragua, who had been invited toparticipate in the debate as interested parties expressed their surprise forGuatemala’s contentions, took the legal position that the O.A.S. could properlyassume jurisdiction over the case and that this should be referred to the regionalagency. Consistently, they declined to enter into substantive discussion on thecharges.

Opposition to this view was held of course by Guatemala, and by the SovietUnion, which supported its position in favour of asserting the Security Counciljurisdiction. Arguments expressed by both delegations happen, logically, to coincidein general, but we will summarize them below separately in order to suggest therespective emphasis given to the respective contentions.

Guatemala pointed out that the case should be considered as arisen from anact of aggression, rather than as a controversy and therefore Articles 33 and 52were not applicable. On the contrary, Articles 34, 35 and 39 clearly recognizedGuatemala’s right to resort directly to the Security Council and by virtue of thefunction of this body in this respect. The Security Council should intervene directlyand not through the regional agency.

The U.S.S.R. maintained that Article 52 (2) was not applicable to the case,since this was constituted by an act of aggression. The Security Council shouldimmediately respond to it in accordance with Article 24 and consequently could notsend the case to the O.A.S. and added to this argument a phrase that summarizesthe Soviet understanding that the regional organization was dominated by the U.S.


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which intended to use the inter-American machinery to cover and support itsscheme to replace the Arbenz government: “Guatemala can expect nothing goodfrom that body”. Moreover, the representative of the U.S.S.R. expressed thatsince Guatemala had rejected the O.A.S. jurisdiction, the Brazilian-Colombiandraft resolution proposing to send the case to the regional agency, was contrary toArticle 36 (2) of the Charter.25

The draft resolution presented by Brazil and Colombia was rejected by 10votes in favour (Brazil, China, Colombia, Denmark, France, New Zealand,Lebanon, Turkey, United Kingdom, and United States), 1 against (U.S.S.R.) andno abstentions.

Immediately afterwards the Council unanimously approved a resolutionsubmitted by France, which called for “the immediate termination of any actionlikely to cause bloodshed and (requested) all members of the United Nations toabstain, in the spirit of the Charter, from giving assistance to any such action”.

The intention of this resolution was far from being achieved and the situationcontinued deteriorating. Honduras and Nicaragua requested the Inter-AmericanPeace Committee to designate a special subcommittee to visit them andGuatemala to investigate the situation. Guatemala rejected this move on the groundthat she could not consent to having this matter brought before that body beforethe decision of the Security Council was fully carried out. Guatemala asserted thecompetence of the Security Council once again and finally along with the SovietUnion urged the Council to meet again to consider alleged violations of itsresolution of 20th June. The body failed to adopt the agenda but some importantdiscussion relevant to our work took place.26

Brazil and Colombia restated their positions both on legal and pragmaticgrounds and expressed that the agenda item should be postponed since the O.A.S.was dealing with the matter and it was logical to wait for the report of the Inter-American Peace Committee. The U.S. joined this view and more strongly than inthe previous meeting asserted the competence of the regional agency. He allegedthat Guatemala’s “effort to bypass the O.A.S. is, in substance, a violation ofArticle 52 (2) and that the U.S. had the legal duty to oppose Security Councilconsideration of the case until the O.A.S. had first dealt with it”. The U.S.S.R.also restated its position affirming the jurisdiction of the Security Council. It saidthat the case was already under the consideration of this body which had evenapproved a resolution on it, and expressed that peaceful settlement proceduresoutside the Security Council cannot be imposed to a Member State of the United

25 Article 36: 1. The Security Council may at any stage of a dispute of the nature referredto in Art. 33 or of a situation of like nature, recommend appropriate procedures or methodsof adjustment. 2. The Security Council should take into consideration any procedures forthe settlement of the dispute which have already been adopted by the parties. 3...26 Guatemala could not participate in the debate since she was not a member of theSecurity Council and the agenda had not been adopted.

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Nations.

Denmark, Lebanon and New Zealand supported the inclusion of the item inthe agenda and expressed that the right to resort to the Security Council should bepreserved, and that Guatemala should consequently be heard. France and theUnited Kingdom adopted an intermediate approach, stating the ultimateresponsibility of the Security Council but refraining from supporting the discussionof the case. The matter, as mentioned above, failed to be included in the agenda by4 votes in favour (Denmark, Lebanon, New Zealand, and the U.S.S.R.) and 5against (Brazil, China, Colombia, Turkey and the U.S.) and two abstentions(France and the U.K.).

The Inter-American Peace Committee renewed its efforts to arrange anenquiry mission, and this time, probably as a result of the Security Council’sinability to consider the case, Guatemala agreed to co-operate. Additionally theO.A.S. Council decided to call a meeting of Ministers of Foreign Affairs of theAmerican States (the O.A.S. Organ of Consultation) for the 7th July to considerall aspects of the danger which implied for the peace and security of the continent,the intervention of the international Communist movement in the politicalinstitutions of Guatemala.27

However, before that date President Arbenz was ousted and Castillo Armastook office. The Subcommittee of the Inter-American Peace Committee whichwas supposed to visit Guatemala, Honduras and Nicaragua had only reachedMexico City and turned back. The O.A.S. cancelled the projected meeting ofForeign Ministers and the new government of Guatemala, informed the U.N.Security Council that the case was closed.

b) Cuba 1960

On July 1960 the Security Council met to consider Cuba’s charges ofinterventionist policy and conspiracy to commit aggression which it lodged againstthe United States.28

Cuba cited Article 52 (4) as legal basis to directly resort to the U.N. SecurityCouncil and to request from it, appropriate measures in respect to the situationreferred to above. Regional procedures, Cuba added, were not exclusive butpermissive since Article 52 (2) was qualified by Article 52 (4). In case of any

27 The meeting was convoked under Article 6 and 11 of the Rio Treaty. See TratadoInteramericano de Asistencia Recíproca. Aplicaciones Vol. I, 1948-1959, Secretaría General,Organización de los Estados Americanos, Washington D.C. 1973, pp.154/15528 SCOR:15th Yr. Supp. for July, August and September 1960, Doc. s/4378. See also Ibid.874th, 875th Meetings, 18 July 1960 and 876 Mtg., 19 July 1960. Claude observes that “thesituation was similar to the Guatemalan case, in that it involved friction between the UnitedStates and a regime which it regarded as giving Communism a foothold in the Caribbeanarea”, op. cit. p.34.


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doubt, Cuba affirmed, Article 103 of the U.N. Charter and 102 of the O.A.S.Charter (at present Article 131) recognized U.N. Charter supremacy andtherefore, no obligation to resort first to the regional agency was possible tomaintain, despite Article 20 of the O.A.S. Charter (at present Article 24). ThusCuba asserted its right to choose the Council in preference to the regional forum.With respect to the political arguments, let us recall that the Cuban spokesman saidthat the United States was intent upon repeating its Guatemalan tactic, covering itsprojecting action against the Castro regime with the mantle to be provided by theO.A.S. and that, more strongly this representative concluded, that Cuba was beingasked “to allow ourselves meekly to be led away, like a docile beast, to theslaughterhouse”.29

Poland and the Soviet Union supported Cuba’s views affirming the right of thelatter to directly resort to the Security Council and asserting the responsibility ofthis body to deal with the case. They cited Article 52 (4) in conjunction withArticle 34 of the U.N. Charter, stressing that the latter referred to any dispute orsituation, and expressing that this was a situation which was a threat to thepeace, which according to Article 34 the Security Council could not neglect toconsider.

The United States rejected that it had aggressive designs against Cuba, andargued for O.A.S. jurisdiction over the case both on legal grounds (Articles 33 and52 (2) of the U.N. Charter and 20 of the O.A.S. Charter - at present Article 24-)and on the ground that the O.A.S. was already planning a foreign ministers’meeting to deal with it.

Britain and France joined the United States in asserting that Cuba had a legalobligation to “Try O.A.S. First”. Italy leaned to this position through it did notexpressly support the “Try O.A.S. First” doctrine. It noted that the O.A.S. wasconsidering the case and therefore the Security Council should at that stagepostpone its intervention but at the same time this body should reserve its finaldecision on the matter. China supported reference of the case to the O.A.S. butoffered no comment on the jurisdictional issue.

Sri Lanka (Ceylon at that time) and Tunisia endorsed Cuba’s right to haverecourse to the Security Council, affirmed the competence of this body to dealwith the matter but judged it expedient for that organ to make use of the O.A.S.

Argentina and Ecuador introduced a draft resolution which asked the Councilto state its concern about the situation, take note of the fact that it was beingconsidered by the O.A.S., adjourn consideration of the matter pending receipt of areport from the O.A.S., invite members of the O.A.S. to assist in promotingpeaceful settlement and urge other states to avoid exacerbation of tensionsbetween Cuba and the United States. It is to be noted that both Latin-American

29 SCOR 15th Yr. 874th Mtg. 18 July 1960.

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members of the Security Council refrained from giving support to the ”Try O.A.S.first” doctrine, tried to avoid entering into legalistic discussion and rather basedtheir proposal on pragmatic grounds. Argentina held that the adoption of the draftwould not imply renunciation of jurisdiction by the Security Council and that itwould simply recognize that the O.A.S. was dealing with the case, and that theCouncil should await the result. Ecuador espoused the doctrine that members ofthe O.A.S. could resort either to the regional organization or to the SecurityCouncil, as they may deem appropriate, but expressed that as a practical matterthe Council should make use of the O.A.S.

The Soviet Union proposed amendments to the draft resolution to delete allreference to the O.A.S. They were rejected by 8 votes against (Argentina,Ecuador, Britain, France, Italy, China, U.S. and Sri Lanka), 2 in favour (Polandand the U.S.S.R.) and one abstention (Tunisia). Then the Council voted 9 to 0,with Poland and the Soviet Union abstaining, in favour of the original draftresolution, which consequently was approved.

c) Haiti 1963

The Security Council devoted two meetings to consider a dispute betweenHaiti and the Dominican Republic on May 1963, at the request of the former.30

No serious controversial discussion took place,31 since Haiti itself avoided it byagreeing that the Council should defer the case to the O.A.S., which hadalready begun efforts to promote a settlement. The Council by consensusdropped the matter, while retaining it on the agenda.

d) Panama 1964

On January 1964, Panama charged the United States, both in the SecurityCouncil and the O.A.S. with aggression.32 This body met on January 10th toconsider the matter.

Panama expressed its charges at the session, emphasized the need to revisethe Treaty on the Panama Canal which it had agreed to with the United States in1903, but it did not request any specific action to be taken by the Security Council,apparently leaving to the latter the initiative to be pursued in this respect. TheSoviet Union supported Panama, and restated its views about the responsibility ofthe Council which it could not ignore this serious case.

The United States denied Panamanian charges, mentioned that the Inter-

30 SCOR: 1035th and 1036th Mtgs., 8th and 9th May 1963.31 It should be noted, however, that Venezuela, a Latin-American member of the SecurityCouncil, supported the right to resort to this body vested on members of the O.A.S., underArticles 52 (4) of the U.N. Charter and 102 (at present 131) of the O.A.S. Charter.32 These charges were originated by an incident which took place in the Panama Canalzone between a group of Panamanians and U.S. military personnel assigned to that area.


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American Peace Committee was dealing with the matter and was about to visitthe area in which the incident had taken place to investigate the case properly. Itaffirmed the O.A.S. competence under U.N. Charter Articles 33 and 52 (2) andO.A.S. Charter Article 20 (now Article 24) and added that the Security Councilwould not relinquish its responsibility if it left the case to be dealt with by theregional agency. The Brazilian delegate suggested an appeal to the parties by thePresident of the Security Council as a means of asserting the legitimate concern ofthis body, which would strengthen O.A.S. efforts to settle the dispute.33 Panamaagreed to the suggestion, the Council dropped the matter and as in the Haiti caseof 1963, it was clear the understanding that the Council had to remain seized ofthe case.

e) Panama 1973

On the 9th January 1973 the Minister of Foreign Affairs of Panama addresseda letter to the President of the Security Council inviting that body to meet inPanama City from the 15th to the 21st March to consider an agenda which wouldhave as its general theme the “consideration of measures for the strengthening ofinternational peace and security and the promotion of international co-operation inLatin America, in accordance with the provision of the Charter and the resolutionsrelating to the right of self-determination of peoples and strict respect for thesovereignty and independence of States”. The Security Council met three timesduring January on the agenda “Request of Panama concerning the holding ofmeetings of the Security Council in Panama City”. The President of the SecurityCouncil received a letter from the Chairman of the Latin-American group in whichthe support of the group for the Panamanian initiative was made known. In theSecurity Council discussions, Panama made explicit that the Panama Canalquestion was one of those important matters that the body should consider inPanama. Moreover the representative of this country stressed that Panamawished the Council, following the new policy of preventive diplomacy, to be ableduring its stay in Panama to realize inter alia the following: that in the so-calledPanama Canal Zone there was a colonial situation, because that zone was a realenclave which was foreign to Panama’s national jurisdiction, and which dividedPanama into two parts and prevented the political, economic and social integrationof the Republic, thus running counter of international tension where a dangerousand potentially explosive situation existed. Panama claimed effective sovereigntyand complete jurisdiction over its entire territory as basic points for a new treatyfor the Canal”.34 In the same meeting the United Kingdom said that if it was thewish of the majority of the Council members to accept the invitation of Panama,the U.K. would be prepared to join in doing so; but at the same time expressedsome concern about it, on grounds of relevancy and convenience, questioning alsothe appropriateness of holding such a meeting away from New York and preciselycloser to the scene of a particular controversy. The United States also mentionedsimilar arguments in its intervention, but clearly expressed serious reservations 33 United Nations Doc. S/PV.1086, 10th Jan. 196434 SCOR; 16th January 1973, A.M.

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about accepting the invitation of Panama.

To counter-argue about the possibility of discussing the question of the Canaland some others related to Latin-American relations with the U.S., it said that forproper functioning of the Council, it was essential that the meeting not beconceived as a means for bringing pressure on bilateral issues not currentlybefore the Council; If it were bilateral problems the best and traditional wayto proceed would be through bilateral negotiations and thereafter, shouldthe need arise, utilising the instrumentalities of the system, as providedunder Chapter VIII and other relevant articles of the Charter.35

All other members of the Council expressed their readiness to hold the specialsession in Panama, supported its initiative and most of them showed that theyshared the concern of Panama on the question of the Canal.

On the 26th of January the Council approved with no objections resolution 325(1973) deciding to hold meetings in Panama City, beginning March 15th and endingMarch 21st 1973 and stating that the agenda for these meetings should be“Consideration of measures for maintenance and strengthening of internationalpeace and security in Latin-America in conformity with the provisions andprinciples of the Charter.”

This decision was expressly supported by the African and Arab groups, whichaddressed their respective communications to that end to the Chairman of theLatin-American Group and these letters were transmitted to the Council.

The session in Panama gave opportunity for lengthy discussions related to theagenda inter alia on the question of the Panama Canal in which, as it can berealized, great attention was going to be devoted.36

On the jurisdictional problem only the U.S. made with some precision the pointexpressing certain reservation on possible action by the Council, though it was farfrom stating the “Try O.A.S. First” doctrine. The representative of that countrysaid that while the Charter conferred the responsibility for maintaining internationalpeace and security on the Security Council, it also provided - in Article 33, itspecifically enumerated - many ways to resolve international issues before suchmatters were brought before the Council. And referring to the Panama Canalquestion added, that if that organ were to take a partisan stand or to reflectonly a parochial viewpoint, it would risk undermining the processes ofbilateral and regional diplomacy which had served the hemisphere so well.Panama rejected this view and asserted the competence of the United Nations,saying that its jurisdiction could not be diminished or limited by that of the O.A.S.

35 SCOR; 16 Jan. 1973, P.M.36 As planned the session took place from 15 to 21 March. The Council held 10 meetingsduring that period.


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and expressing that the supremacy of the U.N. Charter provided by Article 103was expressly recognized by (then) Article 137 of the O.A.S. Charter (at presentarticle 131).

On the 21st of March the Council failed to adopt a draft resolution sponsoredby Guinea, India, Indonesia, Kenya, Panama, Peru, the Sudan and Yugoslavia. Thevote was 13 in favour (the co-sponsors plus Australia, Austria, China, France andthe U.S.S.R.), to 1 against (United States), with 1 abstention (U.K.). Thatresolution would have had the Council take note that the Government of Panamaand the United States in the Joint Declaration signed before the Council of theO.A.S. on 3 April 1964, had agreed to reach a just and fair agreement for theprompt elimination of the causes of conflict between them. The Council wouldhave also taken note of the willingness shown by the Governments of Panama andthe United States to establish, in a formal instrument, agreements on the abrogationof the 1903 Convention of the Isthmian Canal and its amendments, and to concludea new, just and fair treaty concerning the Panama Canal, which would fulfillPanama’s legitimate aspirations and guarantee full respect for Panama’s effectivesovereignty over all of its territory. And finally the resolution would have had theCouncil urge the United States and Panama to continue negotiations in a high spiritof friendship, mutual respect and co-operation and to conclude without delay anew treaty for prompt elimination of the causes of conflict between them.

The United States explained its veto saying that it was not appropriate for theCouncil to adopt a resolution dealing with matters of substance in a continuingbilateral negotiation. Furthermore, the representative of this country added that thedraft resolution was unbalanced, incomplete and therefore subject tomisinterpretation.

On the same day the Security Council approved resolution 330 (1973). Thevote was 12 in favour to none against and three abstentions (France, UnitedKingdom and United States). Through this decision the Council urged States toadopt appropriate measures to impede the activities of enterprises whichdeliberately attempted to coerce Latin-American countries, and requested States,with a view to maintaining and strengthening peace and security in Latin America,to refrain from using or encouraging the use of any type of coercive measureagainst the States of the region.

France, the United Kingdom and the United States explained their abstentionssaying that matters being dealt with by the resolution fell outside the competenceof the Council and suggested that the proper forum would be the GeneralAssembly and/or the Economic and Social Council. The United States added that itwould not and did not condone the use of coercive measures by one State tosecure advantages from another in violation of international law and that alsowanted to clarify that it did not accept the premises of the resolution that any suchcoercive measures were being used.

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f) Malvinas 198237

The question of the interrelationship between U.N. and O.A.S. showed adifferent dimension during the Malvinas conflict. This case was unlike the ones wehave considered so far in two main aspects: a) the case involved a non-O.A.S.State, the United Kingdom; and b) the Security Council had already intervened inthe matter when the question was presented to the O.A.S.38

Immediately after the Argentine take-over on April 2nd the Security Councilheld a meeting and approved Resolution 502 (1982), demanding the immediatewithdrawal of Argentine troops and urging the parties to reach a diplomaticarrangement.

On April 19, when the British troops were about to invade the islands,Argentina convoked the Consultation Organ of the O.A.S., in pursuance of arts 6and 13 of the Rio Treaty.39 Two days later, the Permanent Council convoked theConsultation Organ to “consider the grave situation presented in the SouthAtlantic” and decided to convene a meeting on 26 April 1982.40

Two meetings where held by the XX Meeting of Consultation on this matter.The first one (26/28th April) adopted Resolution I, in which the U.K. Governmentwas urged to the “immediate cease of hostilities ... and to abstain from any actwhich may affect the Inter-American peace and security”. The ArgentineGovernment was also urged to “abstain from taking any action, which mayaggravate the situation”. Finally, the resolution encouraged both Governments toestablish an immediate truce and to start negotiations leading to the pacificsettlement of the conflict.41

While Colombia adopted an isolated stance denying O.A.S. jurisdiction on thematter, most of delegations held either the existence of concurrent jurisdictionbetween the O.A.S. and the U.N., or the right of member state to opt betweenboth systems (Chile, Trinidad & Tobago, U.S., Ecuador, Mexico, Nicaragua, and

37 This conflict involved a number of very complex legal and political issues that will notbe dealt with here; we will limit ourselves to point out some aspects of the question thathave some bearing on our subject.38 While some authors consider that there is no per se contradiction nor incompatibilityin the decision of a O.A.S. organ to intervene after the Security Council had been seized onthe matter (Acevedo, op. cit., p. 192), others find that in this case O.A.S. lacked jurisdictionunder chapter VIII since when third states are involved there would be no “local dispute”,and thus art. 52 would not be applicable (Hummer-Schweitzer, op. cit, p. 696)39 OAS Doc. CP/Doc.1253/82, April 19th, 198240 Eighteen member States voted in favour of the meeting and three (Colombia, TrinidadTobago and U.S.) abstained. Acta de la Sesión Extraordinaria del Consejo Permanente, 21stApril 1982, Doc. CP/ACTA 493/8241 This resolution was adopted by 17 votes in favour and four abstentions (Colombia,Chile, U.S. and Trinidad Tobago). Doc. OEA/Ser.F.II.20, docs. 33/82 and 28/82 rev. 3, corr.1.


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others).42 Therefore, even if the priority of the O.A.S. was not at stake and thuswas not discussed in the Meeting, the debates confirmed the growing tendencyamong O.A.S. members towards the acceptance of the “concurrent jurisdiction”theory.43

g) Nicaragua 1983

This case is similar to the previous one in that it involved an attempt by theO.A.S. to intervene in a question already under consideration by the SecurityCouncil.

On March 23 1983 the Council held a meeting to consider a complaint ofNicaragua regarding acts of aggression against that country.44 After eight sessionsthe Security Council did not resolve the question of jurisdiction or adopt anydecision, but continued to be seized on the matter.

On March 30, Honduras asked for a session of the O.A.S. Permanent Councilto urge Central American countries to initiate negotiations in order to achievelasting agreements to restore peace and security in the region.45 The Nicaraguanrepresentative, while not rejecting the possibility of a “dialogue” within the O.A.S.,indicated that Nicaragua had already presented a claim before the SecurityCouncil and that therefore the issue was under the jurisdiction of the U.N. He alsoupheld the right of O.A.S. members to choose between the U.N. and the O.A.S.46

During the debates some representatives expressed their concern about thejurisdictional issue, but the Permanent Council did not decide upon it and finally thequestion was postponed indefinitely.47

Meanwhile, the U.S. representative to the U.N. expressed in the SecurityCouncil that the O.A.S. was dealing with the problem, stating that under article 52of the Charter, regional problems are better resolved on the regional level.48 TheSalvadoran and Honduran representatives also forwarded similar views, stressingthat the O.A.S. was the appropriate forum to deal with the situation,49 and thatO.A.S. members had the duty under the O.A.S. Charter to submit theircontroversies to the O.A.S. before turning to the Security Council.50

It should be noted, however, that these opinions presupposed that the O.A.S.

42 Id., docs. 24/82, 27/82, 28/82, 33/82 , 67/82.43 Acevedo, op. cit., p. 19344 Security Council, doc. S/15651 (March 22, 1983)45 OEA, doc. CP/doc.1354/83, p. 146 OEA, doc. CP/ACTA 520/83 (April 5, 1983)47 Acevedo, op. cit., p. 20248 Security Council, doc. S/15689 (April 8, 1983)49 Id., doc. S/1569450 Id., doc. S/15691

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had already decided to consider the Honduran proposal, when in fact such decisionhad not been taken, other than expressing support for the so-called “ContadoraGroup”.51 So even if no actual conflict between the U.N. Security Council and theO.A.S. has arisen, this case is important because it showed that the SecurityCouncil did not consider itself to be bound to refer the issue to the regional system,which, unlike the Malvinas case, fell more or less easily on the “local dispute”category.

The issue was addressed, albeit indirectly, by the International Court of Justicein the Nicaragua case (1984). The Court held that “the existence of negotiationsshould not prevent the Security Council and the Court from exercising theirfunctions according to the Charter (emphasis added).”52

2. Competences in respect to enforcement measures

The relationship between the O.A.S. and the United Nations Security Councilin this field poses the other central issue, which we mentioned at the beginning ofthis Chapter II, namely the issue of the O.A.S. autonomy.53 The question leads tothe discussion to establish how enforcement action or measures54 can be appliedby a regional agency, in our case the O.A.S.; and more precisely under whichconditions these measures can be applied by such agency.

Perusal of the Charter provisions leads to the conclusion that the SecurityCouncil is the sole judge of the measures to adopt in this field, while regionalorganization are only enforcing agents of those measures, in a framework of totalsubordination.55 Practice, however, has shown that such subordination is not thatstrict, whereas the O.A.S. and other regional organizations have managed toacquire some degree of autonomy in this domain.

This discussion has its main point in the definition of the term enforcementmeasures, as we will see below, since such definition is given nor by the U.N.Charter neither by the Inter-American Treaties. Moreover to advance the issueand put it in simple terms, let us say that the point arises when asking ifenforcement measures are those contemplated in article 41 and 42 of the U.N. 51 Acevedo, op. cit., p. 20352 Case Concernig Military and Paramilitary Activities in and against Nicaragua(Nicaragua v. U.S.), I.C.J. 1984, p. 44053 This terminology is used inter alia by Claude, op. cit. pp. 18 and 47.54 We will be using the word “measures” or “actions” indistinctively as many writers do.However, some very interesting distinction has been made in this respect: see R.-J. Dupuy,“Organisation internationale et unité politique: la crise de l’Organisation des ÉtatsAméricains”, Annuaire Français de Droit International (1960) pp. 185, 212. We will also beusing in the same manner the word “sanctions”. Edem Kodjo “Accords régionaux” en CotPellet (eds) La Charte des Nations Unies, Paris, 1991, P.823.55 Marc Perrin de Brichambaut, “Les relations entre les Nations Unies et les systèmesrégionaux”, in Société Française pour le Droit International (ed.), Le Chapitre VII de laCharte des Nations Unies, Paris, 1995, p. 98; Remiro Brotóns, loc. cit.


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Charter (which have their parallel in the Inter-American System) or if they areonly of the kind provided for in article 42, namely when they imply the use offorce. This definition is of paramount importance since according to article 53 ofthe U.N. Charter enforcement action can be applied by regional agencies, only intwo cases:56 a) under the Authority of the Security Council, or b) with theauthorization of this organ.

It is obvious that depending on the answer that is given to the question ofdefinition of enforcement measures the degree of autonomy of the regional agencywill vary, since authorization by the Security Council may or may not be requiredfor measures of the type of article 41.

There are other related questions i.e. the time in which the authorization is tobe given, the formalities which requires, the differentiation of enforcement fromprovisional measures, to which we will refer in turn.

2.1. The term enforcement measures

As pointed out by F. Paolillo,57 the majority of legal doctrine (and also himself)considers enforcement measures those of the two types included in articles 41 and42 of the U.N. Charter, it is to say regardless they imply or not the actual use offorce. Consequently application of any of these measures has to meet one of thetwo requirements of article 53 if they are to be applied by regional agencies,whether these agencies act under the authority of the Security Council or they actunder its authorization.

Legal arguments supporting this trend can be summarized as follows:

a) the travaux préparatoires indicate so, though it can also be said at thattime little attention was paid to defining enforcement action and that delegates tothe San Francisco Conference spent most of their tine trying to define exceptionalcircumstances in which action could be taken without Security Councilauthorization (self-defense and action against enemy states).58

It can be recalled that two Latin-American countries (Brazil and Venezuela) 56 For reasons which need little explanation in a work of this kind, we will omitconsideration of the question related to enemy states.57 Paolillo, op. cit., p.224, along with others quoted below. See also among supporters ofthis trend Hans Kelsen “Collective security and collective self- defense under the Charterof the U.N.” in American Journal of International Law, October 1948, p.786, and also “TheLaw of the United Nations”, London, 1950, p. 724/25; Gómez Robledo; op. cit., p. 372;Castañeda, op. cit., p. 558; González Gálvez, op. cit., p. 154.58 Michael Akehurst, “Enforcement Action by Regional Agencies, with special Referenceto the Organization of American States”, British Yearbook of international Law, 1967. Seealso U.N.C.I.O. Vol. II, pp. 20/24; note as well that Committee IV. 3’s report on whatsubsequently became Articles 41-50 was entitled “Mechanism of Enforcement measures”(ibid., vol. 12, p.508).

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seemed to have understood at San Francisco that enforcement action includedboth types of measures59. Even the United States had regarded themaccordingly60.

b) As we know the only exception to the principle of non-intervention inmatters of domestic jurisdiction is, according to article 2 (7), that it “shall notprejudice the application of enforcement measures under Chapter VII”. Now ifwe consider that enforcement action is only that which imply the use of force, inthe case that the Security Council is confronted with a threat to the peace arisingfrom matters within the domestic jurisdiction of a State, it would only be able totake military action and it could not apply measures provided for in Article 41. Thisreasoning clearly leads to an absurd and contradictory result. Absurd because itrequires the application of the most radical measures when it may be notnecessary such action and it would even be unwise to resort to them.Contradictory because article 42 treats military action as something more drasticthan the other type of sanctions something which is only to be applied” should theSecurity Council consider that measures provided for in Article 41 would beinadequate or have proved to be inadequate”.61

c) Article 50 provides that a State, facing economic problems as a result ofenforcement action against another State, shall have the right to consult theSecurity Council with regard to a solution of those problems. It would beinconsistent that such a right could only be claimed when it is the case of the useof force (if enforcement action is interpreted in that restrictive manner). Preciselythe need of exercising such a right and its justification is equally found whenproblems, which that State is facing are caused by economic sanctions to a thirdState. To state the opposite would imply that the right to consult about economicproblems by the State concerned is not applicable in the case of economicsanctions62. It seems not necessary to qualify this conclusion nor to argue abouttechniques of interpretation of law in order to restate the invalidity of the premiseon which it is based.

d) It would also be absurd for members of the U.N. to be allowed to aid Statesagainst whom the Organization was taking non-military sanctions, while beingforbidden by article l2 (5) to aid States subject to provisional measures or militarysanctions, and that would be the case if we understand enforcement actionmentioned in this article as meaning the use of force only.63

59 See Venezuela statement in U.N.C.I.O., vol. 4, pp. 265/6 and the Brazilian draftamendment in vol. 4 p.829. This draft was not put to the vote.60 In two draft plans for the Charter including one used as a working paper at DumbartonOaks, the United States had included commercial financial and economic measures withinthe framework of enforcement action. “Post War Foreign Policy Preparation 1939-1945”,“U.S. Dept. of State, Pub. 3580 Washington: GPO”, 1949, pp. 583, 596. Claude, op. cit. p.50.61 Ruda, op. cit., p.60; Paolillo, op. cit. p.236; González Gálvez, op. cit., p. 156.62 Ruda, op. cit., p.61.63 Manuel Rama Montaldo. Anuario Uruguayo de Derecho Internacional; Montevideo1962, p.386.


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e) Article 20 (formerly 19) of the O.A.S. Charter provides that no state canapply or encourage enforcement measures of economic and political character tocompel the sovereign will of another State and to obtain from this any kind ofadvantage. It is therefore clear that the use of force is not an essential element tothe concept of enforcement measures, even within the inter-American legalframework.

The view supporting the restrictive interpretation of the term enforcementmeasures, it is to say requiring the use of force to qualify them as such can besummarized by the quoting of the following passage of a well known report by Dr.Alberto Lleras Camargo, then Director General of the Pan American Union:64

“In the Charter of the United Nations there are two types of measures closelyco-ordinated with the procedure to be followed in the Security Council whenfaced with threats of aggression, with the refusal of the States to comply withthe recommendations of the Council, or with the breach of the peace. The firsttype is that of article 41, according to which the Security Council isempowered to decide what measures not involving the use of armed forceare to be employed to give effect to its decisions, and it is empowered to callupon the Members of the United nations to apply such measures. But if thesemeasures are or have proved, to be inadequate, coercive measures will nextbe applied, with the use of air, sea, or land forces. There is a clear distinctionfor the reader of the Charter between the measures of Article 41(enforcement action) which are not coercive, in the sense that they lack theelement of physical violence that is closely identified with military action, andthose of article 42. Enforcement action, with the use of physical force, isobviously the prerogative of the Security Council, with a single exception:individual or collective self-defense. But the other measures, those of Article41, are not; it may even be said that it is within the power of any State –without necessarily violating the purposes, principles or provisions of theCharter – to break diplomatic, consular, and economic relations or to interruptits communications with another State.”

In commenting this passage Ruda65 observes, and we share his view, thatLleras Camargo’s Report involves a fundamental misconception. One thing is thata State can individually decide to take any measure of Article 41 and another thingis that those measures be taken as enforcement measures by the organization.

64 Inter-American Conference for the maintenance of continental Peace and Security,Report on the Result of the Conference Series Nº 53, Washington D.C., Pan AmericanUnion, 1947, pp. 41-42. It is interesting to recall that Lleras Camargo, precisely, had beenthe Chairman of Committee 4 of Commission III, which dealt with “Regional Arrangements”at the San Francisco Conference of 1945. This approach is also followed by CaicedoCastilla, op. cit., p. 335; Jiménez de Aréchaga; El derecho internacional contemporáneo,Madrid, 1980, p. 168; Marchand Stens, op. cit., p. 80; Remiro Brotóns, op. cit., p. 968;Merrills, op. cit., p. 282..65 Ruda, loc. cit.; cf. González Gálvez, op. cit., p. 155.

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From the individual point of view, it is correct that the Charter has not forbiddenStates to break diplomatic relations, etc.; but what it is not allowed is to resort tothe threat or use of force, according to Article 2 (4). If the Security Councildecides to take one of those measures, because of the existence of threats to thepeace, breaches of the peace or acts of aggression, it is taking an “effectivecollective measure” in the sense of Article 1 (1). And this decision is binding uponall Members, being in agreement or not, since they had agreed to accept and carryout such decisions by virtue of Article 25. To summarize, once thing is a measureof individual character and another is a collective one as qualified by the U.N.Charter.

2.2. Opportunity in which the authorization is to be given

It can be said that there is no question that the authorization by the SecurityCouncil is needed only for the application of enforcement measures and it is notrequired for the adoption of them by the regional agency.66 Furthermore, it isadded that the Security Council’s authorization is not needed until it is a question ofactually putting the previously agreed plans into effect. This permits contingencyplanning in advance.67

Now, can the authorization be postponed until after the enforcement action hasstarted? The Soviet Union seemed to think so in 1960, when suggested that theSecurity Council should approve sanctions which the O.A.S. had imposed, withimmediate effect, upon the Dominican Republic sixteen days earlier. However thedelegation of France opposed to this suggestion saying that “to attempt to applyArticle 53, to this case (as the Soviet Union sought to do) would be self-contradictory, since the provision invoked involves the authorization by the SecurityCouncil and it is clear that this authorization must be given in advance.”68

It is submitted that the authorization should be previous to the application ofenforcement measures by the regional agency as the majority of the doctrineaffirms. To hold otherwise might lead to encourage illegal acts, because regionalagencies would be tempted to initiate enforcement action in the hope that theSecurity Council would give its authorization, but this hope might not always befulfilled. In other cases the Security Council might feel that it would be politicallyawkward to withhold authorization for what had already been done; confrontingthe Security Council with faits accomplis would therefore fetter the discretionwhich Article 53 intended it to enjoy. Even more post facto denial by the SecurityCouncil could lack of practical effect since detrimental consequences ofenforcement measures, which had been applied by the regional agency, may proveto be difficult or impossible to reverse.69

66 Paolillo, op. cit. p.222; Ruda, op. cit. p.59; Gómez Robledo, loc. cit.; Jiménez deAréchaga, op. cit., p. 170.67 Akehurst, op. cit. p.214; Jiménez de Aréchaga, “La coordination ...”, p. 497.68 SCOR; 15th Year, 83rd Mtg., 8 September 1960.69 Inter alia see: Akehurst, loc. cit., Paolillo, op. cit. pp. 237/38; Ruda, loc. cit.; Remiro


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2.3. Formalities required for the authorization

The question here consist on determining whether authorization means anexpress decision by the Security Council or it can be drawn as implicitly conceded.Though we will refer to specific cases below, it is necessary to consider somerelevant aspects of two of them, to point out the controversy regarding this issue.In the case of the O.A.S. sanctions against the Dominican Republic in 1960 theSecurity Council could not approve them as suggested by the Soviet Union, buttook note of those sanctions in a decision.70 Afterwards this resolution was goingto be interpreted in two different ways: 1) The United States would maintain thatno authorization by the Security Council was needed for those measures applied bythe O.A.S. (It should be recalled that in the Dominican Case of 1960 only non-military measures were applied), 2) The Soviet Union would read the resolutionsaying that in “taking note” of the O.A.S. action without expressing disapproval,the Council had implicitly approved the action and thus establish its competence togive or withhold approval. I. Claude observes71 in this respect, that “for this reasonthe Soviet Union had refrained from exercising its veto power. Moreover, itinterpreted the views of members who had advocated evasion of the legal issue(this was in fact the one related to the definition of enforcement measures), asindicating that they had not intended to set a precedent, but that they wishedinstead to leave the door open for future determination of the meaning of Article53.”

This question of implicit authorization paradoxically was later put forward byU.S. legal advisers to the Department of State when arguing that the imposition ofthe quarantine against Cuba during the missile crisis in 1962 was done under anO.A.S. resolution and that resolution was not contrary to article 53 of the U.N.Charter. Though, as we will see when referring to this case, this was not the mainargument, directed to evade Security Council control, it is precisely the onerelevant to this point and we prefer to make reference to it here rather than belowwhen dealing with the case. Such type of extensive interpretation of authorization,as derived from a kind of acquiescence was put in by L.C. Meeker72 in thefollowing way: “The Security Council did not see fit to take any action inderogation of the quarantine. Although a (draft) resolution condemning thequarantine was laid before the Council by the Soviet Union, the Councilsubsequently, by general consent, refrained from setting upon it, and instead choseto promote the course of a negotiated settlement... Authorization may be said tohave been granted by the course which the Council adopted.”

To the same direction, but trying to avoid inconsistency with the U.S.

Brotóns, loc. cit.; Jiménez de Aréchaga, El Derecho .... loc. cit.; Gómez Robledo, op. cit. p.373; Georg Ress, “Article 53”, in Simma, op. cit. p. 733.70 SCOR; 15th Year, 895 Mtg., 9 September 1960, p.5.71 Op. cit. pp. 52/53.72 L.C. Meeker, “Defensive quarantine and the Law”, American journal of InternationalLaw,57, 1963, p.515.

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interpretation of the resolution of the Security Council related to sanctions imposedby the O.A.S. upon the Dominican Republic in 196073 other principal legal adviser,Chayes, said:74 “The debates in the Security Council in the case of the DominicanRepublic revealed a widespread readiness to coincide that the requirement of‘authorization’ does not import prior approval, but would be satisfied by subsequentaction of the Council, or even a mere ‘taking note’ of the acts of the regionalorganization.”

Summing up, these arguments try to states that authorization can be inferredfrom the Security Council’s failure to pass a resolution condemning theenforcement action and that an analogy can even be drawn from the customaryrule developed in the practice of the Security Council concerning abstentions ofPermanent Members.

Notwithstanding, we share the view75 that this customary rule is based on thetravaux préparatoires and on a continuous practice, and acceptance by all statesconcerned. Consequently such analogy might be difficult to be allowed since noneof these elements are present here.76

Precisely travaux préparatoires related to the issue of regional autonomy, asit may be recalled, clearly show that States represented in San Francisco andparticularly American States were aware that authorization by the SecurityCouncil required an express consent and that the veto power could preclude theachievement of this requirement. And it is also known that the compromisereached at that time regarding regional autonomy, especially advocated by Latin-American countries, was the inclusion of Article 51 and not the deletion ofauthorization prescribed by Article 53.77 The whole lengthy discussion held at SanFrancisco would be otherwise meaningless. As M. Akehurst78 says “ifauthorization had merely meant acquiescence the bitter dispute would have beenpointless”; besides a distinction is to be made between acquiescence by apermanent member and acquiescence by the Security Council as a body; apermanent member which abstains, is probably not unwilling to see the resolution

73 It should be noted however that in this case the issue was regarding interpretation ofthe term enforcement measures.74 A. Chayes, “Law and the Quarantine of Cuba”, Foreign Affairs, 41, 1962-63, pp. 552-556.75 McDougal and Gardner, “The Veto and the Charter”, Yale Law Journal 60, 1951, pp.258, 277/278.76 Moreover, and with regards to the argument put forward by the US that art 53 had lostits efficacy owing to the rebus sic stantibus clause given the impotence of the SecurityCouncil at that time, Prof. Conforti affirms that whoever holds such view must coherentlyconclude that the whole Charter and not only its individual provisions have terminated;The Law and Practice of the United Nations, Den Haag, 1997, p. 22377 For reference to this discussion see U.N.C.I.O. Vol. XII, and also comments made byClaude, op. cit. pp. 7/9.78 Akehurst, op. cit. pp. 217/218; White, op. cit., p. 215; Remiro Brotóns, loc. cit.; Jiménezde Aréchaga, loc. cit; Ress, loc. cit.


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passed, but failure by the Security Council to condemn a regional action (as theU.S.S.R. had proposed in the Cuban case) it is caused most possibly by an actualor prospective veto, even though other members (or even all the others) wished tocondemn the action in question. To say in these circumstances that there isacquiescence by the Security Council does not seem to be legally based.

2.4. Enforcement measures and provisional measures

It can be said that little controversy has arisen in respect to the differentiationbetween enforcement measures and provisional ones, namely between measurescontemplated in Article 41 and 42 of the U.N. Charter and those embodied inArticle 40.

To differentiate one type of measure from the other is obviously importantsince this differentiation permits regional agencies to apply provisional measuresautonomously, it is to say without Security Council’s authorization.

It appears almost evident that this differentiation must be made and thatconsequently this is not the case of requiring authorization by the regionalagency.79 If provisional measures did constitute enforcement action - on the otherhand -, a State which had been called upon to comply with provisional measurescould be suspended from exercising the rights and privileges of membership underArticle 5, and this would be incompatible with the principle laid down in article 40,that “such provisional measures shall be without prejudice to the rights, claims orposition of the parties concerned.”

As Paolillo observes,80 there is no provision in the U.N. Charter which forbidsregional agencies to apply such provisional measures, provided that they arecontemplated in their respective legal framework. Moreover, it can be worthy topreserve for regional agencies, this right of application of non-coercive measures,since through them in many cases it could also be possible to avoid having to resortto more radical measures.


a) Dominican Republic (1960)

This is the first case, which the O.A.S. autonomy in imposing sanctions issuewas brought to the attention of the U.N. Security Council. As we know thosesanctions were imposed upon the Dominican Republic by the Sixth Meeting ofConsultation of Foreign Ministers of the American States, held at the request ofVenezuela, at San Jose de Costa Rica. The resolution of the O.A.S. Organ of

79 Jiménez de Aréchaga, “La coordination...”, pp. 465/466, Paolillo, op. cit. p.223; Ruda,op. cit. p.63; Gómez Robledo, op. cit., p. 371.80 Paolillo, loc. cit..

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Consultation was approved on 20 August 196081 and it resolved that members ofthe regional organization apply sanctions, which consisted in the severance ofdiplomatic relations and partial economic embargo beginning with militaryequipment. In accordance with the resolution, the O.A.S. Secretary Generalreported to the U.N. on the matter82. Four days later the Soviet Union requested ameeting of the Security Council to deal with the subject “according to Article 53 ofthe Charter” and submitted a draft resolution for approving “the enforcementmeasures” taken against the Dominican Republic by the O.A.S.83 Afterwards theU.S.S.R. revised its draft deleting the qualifications of those measures as sanctionsand leaving the proposal for approval of the O.A.S. resolution.84

The Security Council devoted three meetings to the question of the DominicanRepublic.85 We will summarize the more important developments that took place inthose meetings.

The U.S.S.R., backed by Poland, invoked the rule of Article 53 asunquestionably applying to the case. It had no doubt that the O.A.S. resolution hadimposed enforcement measures and therefore authorization from the SecurityCouncil was required, since without such authorization, application of enforcementaction by the regional agency would be contrary to the U.N. Charter.

The United States took an equally firm and dogmatic position counter-arguingthat the Security Council authorization applies only to forcible measures, not tosuch diplomatic and economic sanctions as the O.A.S. was putting into effectagainst the Dominican Republic. Actions of the latter kind, it added, couldlegitimately be taken by any State in exercise of its sovereignty; hence it wasinconceivable that Article 53 could be taken to restrict the right of a group ofstates to apply such measures. Additionally the U.S. declared that the O.A.S.foreign ministers had considered that the Charter only required them to inform theSecurity Council of their action, not to seek its approval. The United Kingdom,China, France, Italy, Tunisia and Venezuela (which was participating in the debateby invitation as an interested party) leaned towards the United States’ view, butonly the U.K. and Venezuela seemed absolutely confident of its interpretation ofArticle 53 and the related question of definition of enforcement measures.Argentina and Ecuador cosponsored a draft resolution jointly with the U.S. throughwhich the Security Council would take note of the O.A.S. decision86 but the two 81 O.E.A. Sexta Reunión de Consulta, Doc. 25, Rev., p.4.82 U.N. S/4476, 1 September 1960.83 SCOR 15th Year, Supplement for July, August and September, 1960 doc. S/4477 andS/4481 and Rev. 1.84 Claude, op. cit. p.49 observes that the political meaning of the Soviet move was clear.Promotion of Council approval of O.A.S. sanctions in the Dominican case was designed tolay groundwork for Soviet opposition to Council approval - that is for Council disapproval- of eventual O.A.S. measures against Cuba. These measures were actually taking later bythe O.A.S. as we will see below.85 SCOR; 15th Year, 893rd to 895th Mtg. 8/9 Sept. 1960.86 S/4484, 8 September 1960.


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Latin-American countries regarded the legal issue as more or less open and basedtheir view on practical grounds. Sri Lanka (then Ceylon) thought that the Sovietinterpretation was probably correct, but in view of the uncertainty of the legalposition, said that was prepared to vote for the draft resolution introduced by thethree American countries, and that the words “takes note of” meant “concurswith”.

In the end the Security Council passed the draft resolution tabled by Argentina,Ecuador and the United States by 9 votes, to none against and two abstentions(U.S.S.R. and Poland). The Soviet draft was subsequently withdrawn.

As M. Akehurst observed87 this case revealed an important uncertainty aboutthe legal issues involved.

In paragraph 2.3., Chapter II, of this work we pointed out that after theresolution was passed, the Soviet Union seized upon these expression ofuncertainties to argue that the Security Council by taking note of the O.A.S. actionwithout expressing disapproval, had implicitly approved it and thereby establishedits competence to give or withhold approval.88

The U.S., on the other hand took his vote as a clear vindication of its legalposition,89 as we have also seen above.

We regard the legal question as an open one and let us express that legalinterpretation from a strictly logic point of view can lead to more than one validjuridical conclusion.

Let us come back to the case only to say that the majority voted for theresolution co-sponsored by the U.S. but the minority clearly supported the legalbasis of its position. And now let us proceed to examine how the uncertainties wehad referred to above, were developed in future cases.

b) Cuba 1962

As may be recalled the Eighth Meeting of Consultation of Ministers of ForeignAffairs of the American States held at Punta del Este (Uruguay) in January 1962proclaimed that Cuba’s Marxist-Leninist allegiances was incompatible with theaims and principles of the Inter-American System, suspended the CubanGovernment from participation in O.A.S. and also placed an embargo on exportsof arms to Cuba, as a sanction against this country for having fomented subversiveactivities in other Latin-American countries, particularly Venezuela.90

87 Op. cit. p.190.88 SCOR; 15th Yr. 895th Mtg. 9 Sept. 1960.89 Claude, op. cit. p.52.90 For text of the Final Act see SCOR: 17th Yr., -Supp. for January February and March1962 (S/5976, 3 Feb., 1962).

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Though Cuba complained against the U.S. and the O.A.S. sanctions, as wellas other delegations attending the 16th session of the U.N. General Assembly did,little was said about the legal issue posed by the interpretation of Article 53. Draftresolutions introduced by Czechoslovakia, Romania and Mongolia, which wereeither expressly or by implication critical of the United States, were rejected.91

On the 27th February 1962 the Security Council met to consider a Cubancomplaint against the O.A.S. sanctions taken at Punta del Este and against theU.S. Cuba qualified those measures as illegal and stated that the United States had“converted the O.A.S. into an instrument of aggression.”92 The agenda item failedof adoption since only four members favoured its inclusion Ghana, Romania, SovietUnion and the then United Arab Republic - Egypt -). The other seven membersabstained. However some reference to relevant discussion can be made. TheSoviet Union and the United States restated their respective positions, which theyhad expressed during the Dominican Republic case, except that this time theU.S.S.R. argued that the O.A.S. sanctions were contrary to the United Nationsand O.A.S. Charters93 and should not be approved. In any case, it insisted thatO.A.S. sanctions without the authorization called for in Article 53 were invalid.The United States, together with Chile, the United Kingdom and Venezuela,argued that the precedent established in 1960 (Dominican Republic case) made itclear that the O.A.S. sanctions did not require authorization.

These arguments were further elaborated at a series of Meetings that theSecurity Council held from the 14th to 23rd March 1962 to deal with a request ofCuba which had asked the Security Council to seek an advisory opinion from theInternational Court of Justice on seven questions concerning the legality of theO.A.S. sanctions, including the question whether the sanctions were enforcementaction and subject to Security Council authorization within the meaning of Article53. Cuba also asked the Council to call for suspension of the sanctions pendingreceipt of the Court’s opinion.94 This time the council adopted the agenda withoutobjections and invited Cuba to participate in its proceedings. Let us advance thatthe Cuban request was rejected by 7 votes (Chile, China, France, Ireland, UnitedKingdom, United States and Venezuela) to two against (Romania and the SovietUnion) with one abstention (Egypt); Ghana did not participate in the voting.

It can be noticed that this case involved several questions; whether the O.A.S.sanctions were subject to Council action, whether they were worthy of approvaland the request to the Court itself. The questions were combined in Cuba’s

91 G.A.O.R. 16th Sess., 1st Cmttee., 1231st to 1243rd Mtgs., 5 to 15 Feb. 1962; PlenaryMtgs. 1104th and 1105th, 19/20 Feb. 1962.92 SCOR, 17th Yr. Suppl. for Jan. Feb. and March 1962 (S/5080); see also SCOR 17th Yr.991st Mtg. 27th Feb., 1962.93 It may be noted that neither the O.A.S. Charter nor the Rio Treaty did contemplateexclusion or suspension of a Member as was decided by the Punta del Este Meeting.94 SCOR, 17th Yr. Supp. for Jan. Feb. and March 1962 (S/5080, S/5986 and S/5095); 992ndto 998th Mtgs., 14 to 23 March 1962.


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presentations and in the Council’s debate. Let us briefly review relevant elementsof the discussion.

Arguments against validity of measures applied by the O.A.S. and thereforemaintaining the necessary authorization (or rather disapproval by the SecurityCouncil) since they were enforcement action in the sense of article 53 were putforward mainly by Cuba, Romania and the Soviet Union. These countries alsochallenged their opponents to let the Court decide on the correctness of the abovementioned assertions. This trend advanced arguments which we will try tosummarize as follows:

i. Measures taken by the O.A.S. were enforcement action and consequentlysubject to control by the Security Council as provided for in article 53, and inconformity with the precedent established in the case of the Dominican Republic in1960.

ii. Suspension from the O.A.S. was as the other measures an enforcementaction illegally applied. Neither the O.A.S. Charter nor the Rio Treaty provided forsuch action but even if by implications that conclusion was going to be drawn, it isto say that the measures fell into the competence of the regional organization, itwas clear that the measure constituted enforcement action since enumeration ofarticle 41 of the U.N. Charter is not exhaustive. And of course these measures ofArticle 41 enforcement action even if they did not imply the use of force.Regarding this issue of the suspension, Cuba particularly, said that it was illegalbecause its choice of government was a matter solely within domestic jurisdiction.

iii. Sanctions might only be imposed in order to deal with a threat to thepeace, a breach of the peace or an act of aggression and not in order to bringabout the downfall of a Communist government in Cuba.

iv. In any case the validity of the O.A.S. action was also to be consideredwith due regard to Articles 103 of the U.N., Articles 102 (137 at present) of theO.A.S. Charter and 10 of the Rio Treaty, which clearly recognized thesubordination of the regional system to the Charter of the word organization.

v. Finally, it is to be differentiated action which a State might individuallylegally take from a similar action, when it is taken by a group of States since themeaning and the consequences of the two cases are different.

The other main trend was led by the United States and it was also representedby Chile, China, France, Ireland, the United Kingdom and Venezuela. Its viewsfavouring autonomy of the O.A.S. and legality of measures taken by it, as well asopposition to request an advisory opinion from the International Court of Justicecan be condensed as follows:

i. Measures did not constitute enforcement action since they did not imply

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the use of force. Enforcement action necessitating Security Council authorizationreferred only to military action. The precedent established by the Security Councilin dealing with the Dominican Republic case in 1960, confirmed this assertion.

ii. Any State is free to break diplomatic or economic relations with anotherand therefore groups of states are entitled to do the same on a concerted basis,whether groups are regional or not.

iii. Decisions by regional agencies regarding membership and their constituentinstruments were final and not subject to review by the Security Council. Therepresentative of Ireland further elaborated this idea and recalled the politicalfactors involved, eloquently: He said “To be effective, regional organizations musthave a minimal degree of internal cohesion, a basic sense of common purpose. Todeny regional organizations the freedom to exclude from the privilege ofmembership, Governments or States which, for one reason or other, seem to theother members to have ceased to subscribe to the aims and ideals shared by themembership as a whole would be to deprive regional organizations of the sense ofcommunity of interest and purpose which is the main reason for their existence,and by doing so, to reduce the whole concept of regional organization to anullity.”95

iv. Questions discussed should not be put to the Court, since they raisedpolitical and not legal issues. Besides the legal rule of Article 53 was so clear,especially after the Dominican Republic case of 1960, that it did not needinterpretation by the principal judicial organ of the United Nations.96

We have tried to concentrate as much as we could in the legal argumentsexpressed before the Security Council but let us point out as well that the debatewas as much political as legal. The ideological confrontation between the U.S. andthe U.S.S.R. had found a new and important field within the issue of regionalautonomy and within the American continent. I. Claude observes: “The UnitedStates was unwilling to tolerate the use of an instrument (the Soviet veto power inthe Security Council) to embarrass or inhibit the anti-Communist activities, of theO.A.S. or its own anti-Communist activities...”97 The issue of the suspension ofmembership reveals precisely that while socialist countries deemed possible totranspolate pluralist composition as the one of the U.N. to the O.A.S., theiropponents were not ready to allow communist participation in the latter,98 and for 95 SCOR; 17th Yr. 996th Mts. 21 March 1962.96 It should be noted that Egypt (then United Arab Republic) said nothing about thecorrect interpretation of article 53. Ghana on its part said that the Dominican Republic affairhad left the correct interpretation of article 53 unsettled, and that it was therefore inclinedto support reference of the question to the International Court of Justice.97 Claude, op. cit. p.57.98 France went so far as to characterise the O.A.S. sanctions as “a matter of collectiveprotection which is justified under Article 51 of the Charter” S.C.O.R. 995th Mtg. 20 March1962. It should be noted however that in none of the cases which involved O.A.S.sanctions, nor the regional organisation neither its members including the U.S. invoked this


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that purpose regional autonomy had to be reaffirmed. Moreover, if a SecurityCouncil decision (or rather an absence of it) was able to produce this result, therewas no reason for submitting the question to the Court, from the politicalperspective. It is true that legal (as well as political) issues were involved, but whyto refer them to the International Court of Justice when diplomacy (though noconsensus) could secure the goals pursued, even at the expense of leaving thelegal issues unsettled.

A new legal question regarding enforcement measures and consequentlyrelated to the Security Council authorization was going to arise during the sameyear in respect to Cuba. On the 22nd October 1962 President Kennedy announcedthat the Soviet Union was installing missiles in Cuba for offensive purposes anddemanded the immediate withdrawal. The U.S. simultaneously requested meetingof the O.A.S. Council and the U.N. Security Council. On the 23rd October thatO.A.S. body acting provisionally as organ of Consultation decided to call for theimmediate dismantling and withdrawal from Cuba of all missiles and otherweapons with any offensive capability; to recommend that member states, inaccordance with Article 6 and 8 of the Inter-American Treaty of ReciprocalAssistance, take all measures individually and collectively, including the use offorce (emphasis added), which they may deem necessary to ensure that theGovernment of Cuba cannot continue to receive from the Sino-Soviet Powersmilitary material and related supplies which may threaten the peace and security ofthe Continent; to inform the Security Council of the U.N. of this resolution inaccordance with article 54 of the Charter of the U.N. and to express the hope thatthe Security Council will. . . dispatch United Nations observers to Cuba. . .etc.99

Immediately after this resolution had been passed President Kennedy issued aproclamation in which, relying on the O.A.S. decision he announced that the U.S.was imposing a quarantine on Cuba. Other Latin-American countries joined theU.S. co-operating, of course in a relatively modest manner if compared with theactions undertaken by the former, with the enforcement of that quarantine.

The issue of autonomy now involved the actual application of force.

The Security Council considered the crisis, following the request of the U.S.(to which we have referred to above) and those of Cuba and U.S.S.R., at its1022nd to 1025th Mtgs., held between the 23rd and 25th October 1962.

The U.S. tabled a draft resolution calling for (i) the withdraw from Cuba of allmissiles and offensive weapons, as a provisional measure under Article 40 of theU.N. Charter; (ii) the dispatch of U.N. observers to Cuba to report on compliancewith the resolution; (iii) termination of the quarantine after the missiles had beenwithdrawn; and (iv) negotiation between the U.S. and the U.S.S.R..

Article.99 Text in S.C.O.R., 17Th Yr. l022 Mtg. 23 October l962, paragraph 81

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The discussion in the Security Council contained few arguments of legalnature, especially in relation to the issue of regional autonomy.

The Soviet Union and Cuba argued that the missiles were intended fordefensive purposes (e.g. deterring a United State invasion to Cuba); the UnitedStates action, they alleged, infringed the freedom of the seas, was an act of warcontrary to Article 2 (4) of the Charter and increased the risk of thermonuclearwar. In reply the U.S. said that the aggressive purpose of the missiles was provedby the secrecy and deceit with which the Soviet Union had tried to upset nuclearbalance of power.

China argued that the quarantine entailed the use of force and thereforeconstituted action which could not be taken without Security Council approval andEgypt also expressed similar views.100

The solution was not going to be reached within the U.N. framework and thecrisis was superseded by an agreement achieved between the two superpowers onthe 28th of October 1962. The Soviet Union withdrew the missiles and thequarantine was lifted.

Afterwards certain legal justifications of the quarantine were published byU.S. Department of State legal advisers. We have referred above, in paragraph2.3. of this Chapter, to some of them when we recalled opinions of Meeker andChayes regarding the need of authorization by the Security Council and theacquiescence theory.

The other main argument used by the U.S. Department of State advisers wasthat enforcement action meant action taken under a binding decision, not under arecommendation; and the O.A.S. resolution of 22nd of October 1962 has onlybeen a recommendation. In support of this view Meeker101 cites the advisoryopinion given by the International Court of Justice in the Expenses case. However,as M. Akehurst102 points out, “in that opinion the Court treated U.N.E.F. andO.N.U.C. as not constituting enforcement action because they operated with theconsent of the State concerned; the Court's distinction between enforcementaction and peacekeeping action was not based on the distinction between adecision and a recommendation, but on the presence or absence of consent by theState concerned and Cuba and the Soviet Union did not consent to thequarantine”. Furthermore, this author adds, “under Article 20 of the Rio Treaty,O.A.S. resolutions can never be more than recommendations, which, on Meeker’sargument would mean that they were never subject to Security Councilauthorization.” By the same token “application of this definition to the functions ofthe Security Council under Article 42 could not constitute enforcement action,since it is generally agreed that no State is under a duty to provide troops for the

100 1024th Mtg.; 24th October 1962101 Op. cit., pp 521/522.102 Akehurst, op. cit., pp 202/203.


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Security Council unless it has agreed to do so, either under article 43 or under adhoc agreements of the type used to constitute O.N.U.C. and yet military sanctionsby the Security Council are surely enforcement action par excellence”. What ismost significant, as Akehurst stresses is that Meeker’s arguments had never beeninvoked before103 and have never been invoked since.104

c) Cuba 1964

Upon the request of Venezuela, the O.A.S. Council considered in November1963, accusations of that country against Cuba. Venezuela affirmed that it hadbeen the target of a series of actions sponsored and directed by the Government ofCuba, which had being trying to subvert Venezuelan institutions and to overthrowits government through terrorist, sabotage and guerrilla warfare. The Councilconvoked at that time the Organ of Consultation of the O.A.S. and constituteditself, provisionally, to act as such, following the regular procedures of the regionalorganization. Immediately afterward it appointed a committee to investigatecharges denounced by Venezuela. The committee found Venezuelan chargesjustified105. In the course of its activities the Investigating Committee had askedthe Cuban Government to submit, in writing, if so desired, the information andcomments, so as to determine its responsibility in connection with points in theVenezuelan complaint. The Cuban Government cabled on February 3 that106 it“neither recognizes, admits, nor accepts the jurisdiction of the O.A.S.”

The Organ of Consultation which had been convoked by the O.A.S. Council,met at the O.A.S. headquarters in Washington from July 21 to 26, 1964. ThisNinth Meeting of Consultation of Ministers of Foreign Affairs of the AmericanStates resolved, inter alia,107 “...That the governments of the American States notmaintain diplomatic or consular relations with the Government of Cuba; that thegovernments of the American States suspend all their trade, whether direct ofindirect, with Cuba, except in foodstuffs, medicines, and medical equipment that

103 It may be noted in this respect that, under Articles 6 and 7 of the Pact of the League ofArab States, military action is voluntary, but in 1948 the United States argued that theArab's States military operations in Palestine could not bed legal as enforcement actionbecause they had not been authorised by the Security Council; S.C.O.R., 307th Mtg. 28thMay 1948.104 G.I.A. Draper in “Regional Arrangements and Enforcement Action” Revue Égyptiennede droit international, 20 (1964) , pp. 1/24, says that the U.S. argument consisted inaffirming that what is illegal if it be done under obligation became lawful if it be donevoluntarily.105 See report in, Tratado Interamericano de Asistencia Recíproca, Aplicaciones, Vol. II, p.224, Secretaría General, Organización de los Estados Americanos, Washington 1973.106 The Inter-American System, Inter-American Institute of Legal Studies New York, 1966,p.167107 Sanctions imposed to Cuba were based on Article 6 and 8 of the Treaty according tothe Resolution, which also declared that acts verified by the investigating Committeeconstituted an aggression and an intervention on the part of the Government of Cuba inthe internal affairs of Venezuela.

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may be sent to Cuba for humanitarian reasons; and that the governments of theAmerican States suspend all sea transportation between their countries and Cuba,except such transportation as may be necessary for reasons of humanitariannature."108 The Secretary General of the O.A.S. was instructed through the sameresolution to transmit its full text to the U.N. Security Council, in accordance withthe provisions of Article 54 of the U.N. Charter.109 In compliance with theseinstructions the Secretary General transmitted the resolution to the WorldOrganization by letter dated 27th of July of 1964.110

On the 9th of August 1964, the representative of the U.S.S.R. transmitted tothe President of the Security Council a letter111 containing a statement by hisgovernment which declared, among other things, that the resolution of the NinthMeeting of Consultation has arbitrarily and groundlessly condemned Cuba foraggression and intervention. Decision of the O.A.S. meeting, the U.S.S.R.statement said, was legally untenable and in contradiction of the U.N. Charter andthe principles of international law; “no enforcement action shall be taken underregional arrangement or by regional agencies without the authorization of theSecurity Council”. The U.S.S.R. further expressed that according to Article 39,the Security Council is the sole organ which “shall determine the existence of anythreat to the peace, breach of the peace, or act of aggression” and the SecurityCouncil alone shall decide “what measures shall be taken in accordance withArticle 41 and 42, to maintain or restore international peace and security”, and noregional organization is endowed with these rights. The Soviet Union also pointedout that the Charter of the U.N. in Article 2 forbids the threat or use of force ininternational relations, and also expressed that the O.A.S. decision could not bejustified by reference to the Rio Treaty, since Article 103 of the United NationsCharter stipulated that, in the event of a conflict between the obligations of themembers of the U.N. under the Charter and the obligations under any otherinternational agreement, their obligations under the Charter prevailed.

In a letter by the representative of Czechoslovakia to the President of theSecurity Council, dated August 17, 1964 which it was attached a statement by theCzechoslovak Government, same contentions and legal arguments put forward bythe U.S.S.R. were made. 112

The Security Council, however, held no meeting to consider this case, since norequest to that effect was made.

108 Resolution I of the Ninth Mtg. Of Consultation; see full text in Tratado Interamericanode Asistencia Recíproca..."Loc. Cit. p. 219.109 Paragraph 7 of Resolution I mentioned above110 U.N. Document S/5845111 U.N. Document S/5867112 U.N. Doc. S/5901


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d) Dominican Republic 1965

The President of the Dominican Republic, Juan Bosch, was ousted by amilitary coup in June 1963. The military government which succeeded Bosch,collapsed in April 1965 in the face of coups launched by right wing military leaders,who then proceeded to fight each other. On April 28, President Johnsonannounced that he was sending United States’ marines to the Dominican Republicin order to evacuate United States citizens whose lives were endangered by thefighting,113 though it was extremely doubtful whether a State is entitled to useforce in order to protect its nationals.114 Within a matter of few days the UnitedStates provided for citizen evacuation and remained probably more than thenecessary for that operation. It put forward other two arguments to justify itsintervention. First the necessity of saving the Dominican Republic from theCommunist, who had allegedly replaced the democratic elements as leaders of theleft-wing forces, and second that the continuance of the U.S. military presencehad the purpose of preserving the capacity of the O.A.S. to function in the mannerindicated by its Charter; in other words that this presence gave the O.A.S. theessential time in which to consider the Dominican situation and to determine meansof preserving the rights of that country under the Inter-American system.115

On April 29, 1965, the U.S. informed both the U.N. Security Council and theO.A.S. that it was sending troops to Santo Domingo as announced by PresidentJohnson the day before. The O.A.S. Council, which had been informed by therepresentative of the Dominican Republic on April 28 about the events in hiscountry, decided on the following day to appeal for a cease-fire in the DominicanRepublic. On April 30, the Council approved another resolution calling again allparties involved to pursue immediately all possible means by which a cease firemight be established and all hostilities and military operations suspended, andurging them to permit the establishment of an “International neutral zone ofrefuge” encompassing the area immediately surrounding the embassies of foreigngovernments, the inviolability of which would be respected by all opposing forces.

113 President Johnson’s statement may be found in SCOR, 20th yr. Suppl. for April May,June 1965, p 65 (S/6310).114 R.J. Dupuy observes “À supposer que l'intervention d’humanité soit toujoursadmissible en droit international, il ne saurait s’agir que d’une faculté tout à faitexceptionnelle, fondée sur un principe très général de légitime défense exercée au profitnon de l'État, comme dans le système de 1'article 51 de la Charte, mais des individus. Dèslors, elle devrait observer deux exigences logiques: la proportionnalité entre les moyensutilisés et la missions à remplir le caractère temporaire d’une opération exorbitante du droitcommun” (“Les États-Unis, l’OEA et l’ONU à Saint Domingue”, Annuaire Français de DroitInternational, 1965, p. 77.). Of course those two requisites were not present and the USresorted later to other justifications. See also Akehurst, op. cit., pp. 204/205.115 Akehurst, op. cit. pp. 205/206 ; Dupuy, loc. cit. See also the Department of State

Bulletin, Vol LII No 1351 , May -1965- ; U. S. statements in S.C.O.R., 20 th. Yr., Mgt. 5 May1965 and 1212 Mgt. I9 May 1965. Documents, decisions and quotations related to OAS andto Security Council actions regarding this case may be found in S.C.O.R., 20th Yr Supp. ForApril, May and June 1965.

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It was also decided to convene a meeting of the Organ of Consultation. On May 1the tenth Meeting of Consultation set up a Committee of 5 representatives ofmember countries (Argentina, Brazil, Colombia, Guatemala, and Panama) toinvestigate the situation and to use its good offices to secure a cease fire and theorderly evacuation of the persons who desired to leave the Dominican Republic. Inthe meantime the U.S. troops had established an “international neutral zone” andthe Papal Nuncio had persuaded leaders of the two factions to agree to a ceasefire.

The O.A.S. Committee, on May 5 1965, persuaded the two parties to sign theAct of Santo Domingo which after reaffirming the cease-fire, agreed upon onApril 30, provided, inter alia, that “The parties accept the establishment of safetyzone in the city of Santo Domingo...” and that “The parties bind themselvesespecially to respect this safety zone, within which there is guaranteed, in themanner that the O.A.S. may deem appropriate, adequate protection for all personsfound within that zone of refuge-. . ”.

On May 6 the Organ of Consultation, decided to create an Inter-AmericanForce. The resolution, among other things, decided: “1. To request Governments ofmember States that are willing and capable of doing so to make contingents oftheir forces available to the O.A.S., ... to form an Inter-American Force that willoperate under the authority of this Tenth Meeting of Consultation; 2. That thisForce will have as its sole purpose in a spirit of democratic impartiality, thatof co-operating in the restoration of normal conditions in the Dominican Republic,in maintaining the security of its inhabitants and the inviolability of human rights,and in the establishment of an atmosphere of peace and conciliation which willpermit functioning of democratic institutions ”(Emphasis added). It isimportant also to recall the preamble of this resolution, inter alia, stated that “Theformation of an Inter-American Force will signify the transformation of forcespresently in Dominican territory into another force that will not be that of one Statebut of the O.A.S...”. Brazil, Costa Rica, Honduras, Nicaragua and (of course)U.S. contingents composed the Force, which were placed under the exclusiveauthority of the Brazilian General Alvim. U.S. forces, however, far outnumberedthe others.116

The Security Council discussed the case during three series of meetings heldfrom the 3rd to the 25th of May, from the 3rd to the 21st June, and from the 21stto the 26th of July. The Soviet Union, who had requested an urgent meeting of theCouncil on the 1st of May, asked this body to condemn the United States, and todemand the immediate withdrawal of United States forces from the DominicanRepublic. On the 14th of May the Council unanimously approved a resolutioncalling for a cease fire and inviting the Secretary General to send a representativeto the Dominican Republic for the purpose of reporting to the Security Council on

116 See Dupuy, op. cit., p.94.


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the situation.117 On May 22 the Security Council passed a resolution requestingthat suspension of hostilities in the Dominican Republic should be converted into apermanent cease-fire. All members voted in favour but the United States, whichexpressed that it had abstained because the resolution did not acknowledge thework of the O.A.S.

Before entering into the relevant discussion held at the Security Council inrespect to our study, let us only recall that the Dominican Republic situationgradually became more peaceful. Due to the mediation of the O.A.S. and the U.S.the rival factions signed the Act of Reconciliation on August 31, 1965,118 which ledto the formation of a Provisional Government, who was accepted by both parties.Elections were afterwards held and Mr. Balaguer won over ex-President Bosch.President Balaguer took office on July 1 1966. The O.A.S. had previously decidedto withdraw its Force and this action was completed by September 1966.119 TheUnited Nations observers were withdrawn in October.120

The most relevant discussion about the case held in the Security Council as faras our work is concerned, is that referred to the new element introduced in thehistory of the U.N. Security Council - O.A.S. relationship, that is the creation ofthe regional force. Naturally this debate had its main characters in the SovietUnion and the U.S.

The first mentioned country condemned the creation of the Inter-AmericanForce and qualified it as “a smoke-screen for aggressive acts” by the UnitedStates and as a violation of Article 15 of the O.A.S. (at present article 16)Charter. In respect to the latter provision the Soviet Union expressed that thecreation of any type of armed force, regardless of its purpose by a regional agencyconstituted enforcement action and was invalid unless authorized by the SecurityCouncil. These views were shared by Cuba and by Jordan.121 The U.S. explained 117 The Secretary General appointed Mr. José A. Mayobre, Executive Secretary of ECLAwho investigated the situation, mediated in order to secure a cease fire and maintained theSecurity Council informed about the case through his reports to the Secretary General.Dupuy, op. cit. p.101 observes: “Ainsi les Nations Unies, trop divisées pour exiger le retraitdes forces d’intervention, n’en affirmait pas moins très nettement leur compétence. Pour lapremière fois, elles sortaient de leur réserve prudente et, en envoyant sur place unobservateur, intervenaient activement dans une affaire dont s’occupait déjà lÓrganisationdes États Américains, portant ainsi, dans l’opinion publique un. coup assez sévère auprestige de celle-ci”.118 Text in OEA/Ser.F./II.10, Doc. 363, 7 September 1965.119 Chronique des faits internationaux. Revue Générale de droit international public, 37(1966) p.1028.120 SCOR 21st Yr., Supplement for October, September and December 1966.121 SCOR 20th Yr., Supplement for April, May and June 1965, pp. 225-7 Id. 1221st Mtg., 7June 1965, paragraph 22. Article 15 of the O.A.S. Charter at present Article 18) says “NoState or group of States has the right to intervene, directly, or indirectly, for any reasonwhatsoever, in the internal affairs of any other State. The foregoing principle prohibits notonly armed force but also any other form of interference or attempted threat against thepersonality of the State or against its political, economic, and cultural elements”.

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that “the Inter-American Force is not designed to act, and is not acting against theDominican Republic of the Dominican people” and concluded that the Force didnot constitute enforcement action under Article 53 of the U.N. Charter and thatwas rather governed by Articles 52 and 54. Malaysia supported this view, andlater, in the discussion the U.S. compared the Force with peace-keeping forces inCyprus, the Congo and the Middle East.122

Uruguay affirmed that the role of the Force could not be considered as apeace keeping action, since what it was regarded as an essential prerequisite tothat effect was lacking, namely the consent of the State concerned; France sharedthis view, pointing out that the Dominican Government had not consented to thepresence of the Force, since there was no government, but only factions andconsent by factions could not bind the State.123

Once again the U.N. - O.A.S. relationship could not be agreed upon in thisrespect, but no doubt that this case brought the world organization to perform arole which, in a way forced regionalists as well as Globalists to make effortstowards a harmonization despite the mutual criticism, they addressed to eachother.

e) Grenada 1983

This case is not directly relevant to our study since the measures taken by theU.S. (whether legally or not) were made in pursuance of a decision not of theO.A.S. but of a different regional organization - the Organization of EasternCaribbean States -, even if the case was clearly a “local dispute” over which theO.A.S. could have exercised its jurisdiction. The O.A.S. did take notice of thesituation at an extraordinary meeting of the Permanent Council on October 26, butno explicit mention on the question of O.A.S. jurisdiction on the matter wasmade124. Neither was any action taken in the framework of the Rio Treaty, even ifa convening of a Meeting of Consultation would have been appropriate accordingto articles 3 or 6 of that Treaty. On the other hand, the U.N. General Assemblyapproved Resolution 38/7 which condemned the measures taken in Grenada.

f) Haiti 1991-94

Initial response to the coup in Haiti came from the O.A.S. Immediately afterthe ousting of President Jean-Bertrand Aristide the Permanent Council, pursuant

122 SCOR, 20th Yr., Supplement for April, May and June 1965, pp. 225 Id. 1221st Mtg., 7June 1965, and 1222nd Mtg., 9 June 1965.123 SCOR, 20th Yr., 1221st Mtg., 7 June 1965, Paragraph 44 and 60/1. Akehurst, op. cit.p.212 suggests that this argument was perhaps unduly formalistic, basing his suggestionon the prove that the consent given by both sides in a civil war represent the national willas effectively as consent given by a government in normal conditions.124 Doc. OEA/Ser.G/CP/ACTA 543/83


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to resolution 1080 of 1991 the O.A.S. General Assembly,125 convened an ad hocMeeting of Ministers of Foreign Affairs, which took place on the 3rd October1991. It recommended O.A.S. member States to take measures in order to seekthe diplomatic isolation of the de facto regime in Haiti, including the suspension oftheir economic, financial and commercial ties with Haiti, with the exception ofstrictly humanitarian aspects.126 A few days later another resolution was adoptedwhich encouraged States to immediately freeze Haitian assets and enforce acommercial embargo on Haiti.127

Although the Security Council did not at first comment the legality of O.A.S.actions, the General Assembly approved of the O.A.S. resolution on October11th,128 calling U.N. member States to support the measures taken within theO.A.S.

An interesting exchange of letters between the Secretary-Generals of theO.A.S. and the U.N. ensued.129 On a letter dated June 19 1992, the U.N.Secretary-General attached a letter from President Aristide to the former, in whichassistance was asked from the U.N. to achieve the effective application of theresolutions adopted by the O.A.S. It is worth noticing that President Aristide madeexpress reference to Chapter VIII of the U.N. Charter saying that the actionsundertaken by the O.A.S. had been done in its framework. In his reply – datedJuly 10th 1992 – the O.A.S. Secretary-General pointed out that he did not considerChapter VIII as the basis of the action undertaken by the O.A.S., but rather itsown Charter and the mechanism provided by Res. 1080 and others.130

On December 13th 1992, the Ad Hoc Meeting adopted a new resolution,whose paragraph 8 mandated the Secretary-General to explore the possibility andconvenience of taking the Haitian question to the Security Council in order toensure universal application of the embargo recommended by the O.A.S.131

Consequently the Secretary-General addressed another letter to his U.N.

125 This resolution, adopted during the twentieth session of the O.A.S. General Assemblyin June 1991, sets forth a mechanism in case of irregular interruption of the functioning ofdemocratic institutions of member States. AG/RES. 1080 (XXI-O/91)126 Doc. OEA/Ser.F/V.1-MRE/RES. 1/91.127 Doc. OEA/Ser.F/V.1 MRE/RES. 2/91. The embargo was not of a mandatory charactersince it was adopted outside the framework of the Rio Treaty, which constitutes the onlyway the O.A.S. can adopt compulsory measures (Marchand Stens, op. cit., p. 83; contraWhite, op. cit.). In so far as the embargo was of a recommendatory character, this case canbe parallelled to that of Cuba 1962. See also Danesh Sarooshi “The United Nations and theDevelopment of Collective Security, Oxford, 1999, p234.128 Doc. UN A/Res./46/7.129 These letters are reproduced in doc. OEA/Ser.F/V.1-MRE/INF.15.92130 Needless to say, there appears to be no contradiction between the statement made byPresident Aristide and that made by the O.A.S. Secretary-General. But the answer providedby the latter is a clear illustration of the uneasiness of the O.A.S. vis-à-vis Chapter VIII.131 Doc. OEA/Ser.F/V.1-MRE/RES.4/92.

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counterpart, in which he intended to study the legal grounds and consequences ofSecurity Council intervention on the matter. He found, inter alia, that the universalapplication of the embargo presupposed the adoption of a mandatory decisionunder Chapter VII, which would therefore require the determination of a threat tothe peace. He went on to say that the efforts to solve the issue within the O.A.S.had not been deemed exhausted by the Ad Hoc Meeting of Ministers. He believedarticle 52 (2) was not applicable since the O.A.S. could continue to make allefforts in the regional level without prejudice to the co-ordination of actions withthe U.N.132

Only when the Security Council intervened in the matter did the measuresadopted by the O.A.S. acquire binding effect. On June 16 1993, the SecurityCouncil held a meeting to deal with the situation in Haiti, unanimously adoptingResolution 841, co-sponsored by U.S., France and Venezuela. This resolution,taken under Chapter VII, imposed an oil and arms embargo on Haiti whichcomplemented the one recommended by the O.A.S. Hence, the Council endorsedthe actions taken by the O.A.S., and actually provided for the continuation of themediation efforts of both Secretaries-General.133

During the debate, the delegates from Canada, Venezuela, Pakistan and Brazilexpressed the view that the resolution was adopted in a spirit of sharedresponsibility and co-operation between both organizations. China, however,declared –somewhat surprisingly– that the resolution had made clear that theCouncil had to take into account and respect the opinions of regional organizationsand that all measures adopted by the Council should be complementary andsupportive of measures already taken by those regional organizations.134

In face of the failure of the process tending to the restoration of the legitimateHaitian authorities, the Security Council reinstated coercive measures by virtue ofResolutions 873 and 875 (1993), of October 13th and 16th. The preamble of thelatter made express reference to Chapter VII and VIII, and exhorted memberStates to adopt, either individually or by conduct of regional mechanisms, allmeasures necessary to assure the strict compliance with Resolutions 841 and 873(1993).

But it required the threat in July 1994 of a UN-authorized U.S. militaryoperation for the de facto authorities in Haiti to step down in October 1994. Beforethat, the O.A.S. did discuss the use of military force under the auspices of theOrganization in May 1994 but only three States were in favour of it.135

132 Doc. OEA/Ser.G-CP/INF.3388/93.133 Hugo Caminos; “La legitimidad democrática en el sistema interamericano: un nuevomarco jurídico para la cooperación entre los organismos regionales y las NacionesUnidas”, in Rama Montaldo, op. cit., p. 1055.134 Doc. UN S/PV.3238.135 White, op. cit., p. 214. See statements by representatives of Brazil, Mexico andUruguay (S/PV. 3413, p.4 -10).


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Consequently the Security Council adopted Resolution 940 (1994), on July 31st,which authorized the above-mentioned military operation. This Resolution wasadopted in the face of the opposition of most countries of the region. It isinteresting to note that Brazil, who abstained, expressed the view that democracycould not be defended by the use of force; and that many other Latin-AmericanStates who presented their view to the Security Council thought that the Haitiansituation did not constitute a threat to the peace. The Security Council did nottherefore act in the name of the States of the region.136

III. Conclusions

1. General Observations

The analysis of this subject shows a clear pattern determined by a constantinterplay between international law and politics rather than by a stable legalframework (composed by the U.N. and the O.A.S. systems) on which theinterpreter could work. Moreover, it can be anticipated that in our view the politicalelements are those which prevailed in this matter and are those which are likely tocontinue performing such a role. It is consequently submitted that our conclusionswould fall more properly under the province of an international political analystthan that of the international lawyer.

As many others, U.N. Charter provisions regarding regional organizations,were obviously the result of a compromise mainly among the trends representedby those advocating the Universalist approach and those in favour of the Regionalone137. As often it happens such results are translated into language ambiguousenough to permit conflicting interpretations. Though we share the view thatconsiders any legal rule as subject to more than one equally valid interpretation, itseems to us that in this case many crucial questions concerning the relationshipU.N.- Regional Organizations, were left unanswered, as it is hoped we havedemonstrated in previous chapters of this work. It is in that context that themalleability of the Charter becomes under the impact of political considerationsand political forces. As M. Akehurst put it138, practicing lawyers know that the lawoften has to be stated in terms of probabilities, not certainties and international law,where adjudication is rare, the distinction between legality and illegality is evenmore blurred; in diplomatic negotiations and United Nations debates it is oftensufficient simply to convince the other side and third parties that one’s claim isreasonable, without necessarily being absolutely correct. There is not aconspicuous line between legality and illegality, but a spectrum of varying degreesof legal soundness and unsoundness. 136 María del Carmen Márquez Carrasco, Problemas actuales sobre la prohibición delrecurso a la fuerza en derecho internacional, Madrid, 1998, p. 244 Kodjo, op.cit, p.801.137 Perrin de Brichambaut, op. cit., p. 97; Oscar Schachter, International Law in Theoryand Practice, Den Haag, 1995, p. 410; Hummer-Schweitzer; op. cit., p. 686; González Gálvez,op. cit., p. 145.138 Akehurst, loc. cit. p.220.

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The beginning of deterioration of Soviet-American relations shortly after theSan Francisco Conference was, no doubt, an outstanding element to be consideredin this respect. And the struggle between the U.N. and the O.A.S. over themaintenance of peace and security in the Americas can be inscribed as a chapterin the larger volume of the Cold War.139

In this context, the political-ideological contest between the United States andthe Soviet Union had its first challenge in 1954 when the Guatemala case arose,but in the 1960’s the U.N.- O.A.S. relationship concerning the maintenance ofpeace and security was tested once and again, and developments created complexand delicate problems concerning the proper balance between the authority andfunctions of both organizations. Such developments showed a mixed pattern ofvictories and defeats for the United States in the pro-O.A.S. campaign, whichobviously persisted in its effort to deprive the Soviet Union from intervention inInter-American affairs and more precisely from the exercise of an effective vetopower in the Security Council regarding those matters. On the other hand, thelatter appeared in the unusual role of champion of the rights and competence ofthe U.N.140 and the results which achieved to this end also demonstrate, logically,the equivalent counterpart of such mixed pattern.

With the end of the Cold War and the collapse of the Soviet block the debateabout chapter VIII has taken a more constructive turn and attention has beengiven to how regional organizations and the U.N. can work together.141 In thiscontext, the experience of Haiti may open the door for further co-operation anddivision of labour between the U.N. and the O.A.S.

2. Evolution registered in respect to the central issues of therelationship

To follow the scheme we have proposed in dealing with the subject, let usconsider in these conclusions the evolution registered in relation to the “Try O.A.S.First” issue on the one part, and that related to the application of enforcementmeasures, on the other.

As to the problem of peaceful settlement of disputes, namely the one involvingthe first question, we propose that the principle requiring prior submission andtreatment of a dispute by O.A.S. as a prerequisite to open the resort to theSecurity Council if not superseded was put (perhaps indefinitely) in abeyance.142

As such it was never recognized by the Security Council and its implicit application

139 Claude, op. cit. p.62.140 Id., p.61.141 Merrills , op. cit. p. 281; White, op. cit., p. 211.142 Ernesto Rey Caro, “La solución pacífica de controversias en la OEA y el Pacto deBogotá”, en id., Estudios de derecho internacional, Córdoba, 1982 p. 224; Gómez Robledo,op. cit., p. 366; Schachter, op. cit., p. 411; Nguyen, loc.. cit.; White, op. cit., p. 220; Merrills,loc. cit.


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experimented such a decrease which leads us to the above stated conclusion.

It is important to mention here two legal opinions rendered on this issue withinthe framework of the O.A.S. On occasion of the Honduran proposal of March30th 1983 regarding the situation in Central America, an advisory opinion wasrequested from the legal department of the Secretary-General on the possibility ofO.A.S. intervention in a matter that had already been brought to the attention ofthe Security Council. The opinion reached the conclusion that the previouslyprevailing opinion of the precedence of regional dispute settlement had lost most ofits vigour. That theory had given way to the recognition of the sovereign right ofeach State to freely choose the forum it considers appropriate. Therefore, article35 of the U.N. Charter had been given primacy in order not to force States to acertain procedure. The opinion concluded by stating the existence of concurrentjurisdiction between the Security Council and the O.A.S., while recognizing that alldecisions taken by the latter must conform to the ones decided by the Council.143

The second opinion was produced by the Inter-American JuridicalCommittee.144 It states that under article 52 of the U.N. Charter the SecurityCouncil is the only competent authority to decide in each case the application ofarticle 34 - investigating the existence of a menace to international peace andsecurity -, or the promotion of peaceful settlement by means of a regionalorganization. On the other hand, the U.N. member which is at the same timemember of a regional organization is the only one -other than the Council- legallyable to decide the use of article 35 (1) or the resort to article 52 (2).145

The culmination of this regional trend towards the rejection of the “Try O.A.S.first” came along with a series of amendments to the O.A.S. Charter and the RioTreaty. Articles 23 of the 1967 Charter and Art. 2 of the Rio Treaty, as wementioned before, mandate member States to solve their disputes by regionalmeasures before calling upon U.N. organs. The San José Protocol to the RioTreaty (July 25th 1975) added to article 2 the following paragraph: “This provisionshall not be interpreted as an impairment of he rights and obligations of the StatesParties under Articles 34 and 35 of the Charter of the United Nations”. TheCartagena Protocol to the O.A.S. Charter (December 5th 1985), while adding asimilar paragraph to the new Article 24, went so far as to eliminate all reference to

143 Opinión emitida por el Subsecretario de Asuntos Jurídicos de la Secretaría General enrelación con la competencia de la OEA para conocer del asunto tratado en la sesiónextraordinaria del Consejo Permanente de la OEA de fecha 5 de abril de 1983, OEA/Ser.GCP/doc.1354/83, 11 abril 1983, p. 1-8.144 Resolución acerca de estudios sobre los procedimientos de solución pacífica decontroversias previstos en la carta de la OEA, Comité Jurídico Interamericano; Informes yrecomendaciones, Vol. XVI, 1984, p. 51145 Id. p. 56. In support of this conclusion the Committee espouses inter alia argument b)of the Universalist approach. Neverhteless, it should be noted that two members of theCommittee (MacLean Ugarteche and Herrera Marcano) found that O.A.S. member statesshould seek first a solution in the O.A.S. before referral to the UN. Id., pp. 57 and 63.

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priority of O.A.S. resort.146

Some authors have concluded that these reforms have reduced or eveneliminated any conflicts between the O.A.S. and the U.N., enshrining the principleof freedom of choice of forum.147 It must be borne in mind, however, that whereasthe Cartagena Protocol is in force since November 16th 1988, the San JoséProtocol is yet to receive the necessary ratifications for its entry into force.Moreover, the Cartagena Protocol has not been ratified by all O.A.S. members,while Article II of the Pact of Bogota has not been modified. So it will depend onthe given case whether a particular O.A.S. member State is still bound under theInter-American system to give priority to regional procedures.

In any case, these amendments have no bearing upon the question from thepoint of view of the interpretation of the U.N. Charter itself.148 From a purelylogical-theoretical perspective, argument f) of the Universalist approach mayappear as the most solid interpretation of all the Charter provisions. In the wordsof Hummer-Schweitzer: “Concurrent subject-matter jurisdiction between theSecurity Council and a regional agency does not exist, but the Council, in spite of aregional agency being seized of a matter, can be seized of it at the same time. TheCouncil is thereby barred from taking definitive, meritorial measures as long as themechanisms adopted by the regional agency have not proved to be overtlyineffective.”149

But the practice both of the Security Council and the O.A.S. - a practicewhich has had in general political and pragmatic grounds, and which rarelypresented statements on legal doctrine -150 has clearly tended to the dismissal ofthe “Try O.A.S. first” posture.

Though the Security Council did no refer expressly the Guatemala case to theO.A.S., it is evident that implicitly left the handling of the situation to the latter andthis one was shortly afterwards facing the overthrown of the constitutionalgovernment which had demanded Security Council intervention and consequentlycancelled the meeting of the Minister of Foreign Affairs of the American Stateswhich had scheduled for July 7 1954. It is not discussed here that the O.A.S. didnot make in the meantime necessary efforts to cope with the situation but it is truethat the facts precluded its final action for a peaceful settlement of the dispute.Whichever is the reason, the Guatemala case instead of establishing a precedent

146 It may be mentioned that, when signing this Protocol on November 7th 1986, the U.S.declared they continued to adhere to jurisdictional priority of the regional O.A.S. organs(Hummer-Schweitzer; op. cit., p. 718).147 Id., p. 710; Monroy Cabra; op. cit. pp. 1204/1205.148 Nguyen, loc. cit.149 Hummer-Schweitzer, op. cit., p. 709. It is true, as these authors point out, that some ofthe proponents of the “concurrent jurisdiction” theory end up with a similar conclusion.;Nguyen; loc. cit.150 Id., p. 709.


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for The “Try O.A.S. First” principle stimulated rather a persistent warinessagainst allowing the recurrence of such type of episodes. Not only members of theSecurity Council which in one way or another had affirmed the competence of thisorgan to deal with the case, but even others as Brazil, which co-sponsored thedraft resolution which would have referred the case to the O.A.S. (it had not beenvetoed by the U.S.S.R.) denied that it intended that the Security Council “could nothave dealt with the matter”, at the following session of the General Assembly.Moreover, several Latin-American countries in that IX session, as Argentina,Ecuador and Uruguay went further and clearly affirmed that access to theSecurity Council could not be deprived to members of the O.A.S. by invoking theregional system and that it may well exist cases of concurrent jurisdiction. Theyalso added that affirmation of exclusive jurisdiction of the O.A.S. as a firstinstance would place members of such regional organization in a disadvantagedsituation if compared with that of other members of the United Nations in whatconcerns their respective rights.151 The Secretary General of the WorldOrganization made what can be regarded as a veiled criticism of the handling ofthe case, when expressed: “The importance of regional arrangements in themaintenance of peace is fully recognized in the Charter and the appropriate use ofsuch arrangements is encouraged. But in those cases where resort to sucharrangements is chosen in the first instance, that choice should not be permitted tocast any doubt policy giving full scope to the proper role of regional agencies canand should at the same time fully preserve the right of a Member Nation to hearingunder the Charter”.152

The “Try O.A.S. First” doctrine continued to loose ground during the Case ofCuba of 1960. Though the resolution approved by the Security Council decided tosuspend consideration of the question pending receipt of a report from the O.A.S.it is significant that the two Latin-American members of the Security Councilwhich happened to co-sponsor the resolution refrained from support the O.A.S.priority as a legal doctrine, marking a difference of approach in their behaviour ifcompared with the one performed by Brazil and Colombia during the Guatemalacase, in which they did espouse such a doctrine in the Council. In this opportunityArgentina declared in the Council that it did not deem appropriate to enter into alegal and doctrinary discussion of the matter, but conceded that “no country can bedenied access to organizations of which it is a member”. On this issue, Ecuadoraffirmed that members of the O.A.S. had not obligations restricting their right toresort to the Security Council and expressed that as a practical matter the Councilshould make use of the O.A.S., and in doing so, by approving the draft resolutionthe Council would be exercising and not relinquishing its competence. We notedthe significance of these positions before and we think that their contrast with theone of the United States, which restated the O.A.S. priority doctrine, wasremarkable. Furthermore if we take account the opposition expressed to theAmerican contention by the U.S.S.R., Poland, Sri Lanka (Ceylon at that time) and

151 See G.A.O.R. 9th session, 1954, 481st, 485th, 486th and 486th Plenary Meetings.152 Introduction of the Annual Report of the Secretary General on the work of theOrganization, 1 July 1953 to 30 July 1954, G.A.O.R. 9th Session, Supp. Nº 1 (A/2663).

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Tunisia we come to the conclusion that out of the eleven members of the SecurityCouncil, six were not sharing the United States legal arguments. It is also to benoted that when the Security Council took up the case in January 1961, the Latin-American members at that time, Chile and Ecuador, advanced a proposal (thoughdropped afterwards without having taken formal action) which would have thatbody urge peaceful settlement without making the slightest reference to theO.A.S.153

The trend against resorting to the O.A.S. as a prerequisite to access to theSecurity Council was again confirmed by the Haitian (1963) and Panamanian(1964) cases in which the matters were dropped of consideration leaving the casesto the O.A.S., but provided the previous agreement by the complainantshad been given to this effect and that the cases would remain seized by theSecurity Council and retained in its agenda. Again the Latin-Americanmembers of this organ refrained from supporting the O.A.S. priority doctrine.More explicitly, in the Haitian Case, Venezuela declared the necessity forrecognizing the unrestricted right of members of the O.A.S., mentioning article 103of the U. N. Charter and 102 of the O.A.S. Charter (present Art. 131) as againstthe “Try O.A.S. First” theory154 whose validity and application suffered the lastand perhaps more important rejection when the Security Council dealt with thePanama Canal case in 1973. Though the agenda title was not explicit of that andthe resolution adopted did not expressly referred to it (though the draft vetoed bythe U.S. did)155 it was crystal clear that was the central issue to be discussed inPanama City, since the invitation from that government had been accepted. Theoverwhelming support to the Panamanian initiative both for the convening of themeeting and for the substantial claim compared to the reservation only made to thisrespect by the United States, arguing that the question was being consideredbilaterally and in case of failure there were always open solutions provided for inChapter VIII of the U.N. Chapter, have proved our submission that the directresort to the Security Council by members of the O.A.S. can now be clearlyrecognized, in practice. Not only the U.S. did not intend to prevent the conveningof the meeting in Panama but also was embarked effectively in the Panama Canalquestion and apart from the reservation mentioned above no contention in favourof the priority of the O.A.S. was made. The old days in which this doctrine wasfirmly maintained by that country were passed and such doctrine was superseded.

In contrast to the trend regarding the O.A.S. priority in the peaceful settlementof disputes that we have tried to describe above, in respect to the application ofenforcement measures the consideration of cases referred to in preceding ChapterII section 2 leads us to the conclusion that the regional organization has exercisedso far, an important degree of autonomy which therefore reflects a trend in favour

153 SCOR, 16th Yr., Suppl. for January, February and March154 SCOR, 18th Yr, 1035th and 1036th Mtgs. 8/9 May 1963.155 It should be noted that this draft was co-sponsored by the two Latin-Americanmembers of the Council and all other of the third world.


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of regionalism as competing against U.N. authority in this field.156 The term“enforcement measures” has been defined and redefined and along with otherarguments posed before the Security Council was used so as to exempt from therequirement of its authorization the imposition of economic and diplomaticsanctions (Dominican Republic 1960, Cuba 1962 and 1964, Haiti 1991), the use offorce (missile crisis in Cuba 1962) and the establishment of a regional force(Dominican Republic 1965). Though no principle supporting this autonomy wasever recognized by the Security Council the practice demonstrates that it wasexercised despite a considerable degree of criticism in the U.N. which included incertain cases that of several Latin-American countries. However, it can beassumed that after the Dominican case of 1960 the United States found anincreasing number of these countries joining other members of the U.N. willing toendorse the view that Article 53 of the Charter should not be construed as toinhibit O.A.S. activities against Communism in the region, and consequently ralliedto support the expansion of their rights as a regional group. As I. Claude observed,it may well be that the United States was able to attract greater support forexpanding its jurisdictional rights under Article 52, because the former did, and thelatter did not, involve an attack upon the Soviet Union veto power.157

However from 1960 to 1965 some important developments took place whichhave to be considered in conjunction with this pattern of autonomy of the O.A.S.In the Dominican Republic case of 1965 the Security Council could play certainrelevant role and to some extent this was due to the growing criticism against theUnited States intervention including that of several Latin-American countrieswhich, like Uruguay, in previous cases had shared its view. The O.A.S. as wellwas subject to criticism based on the feeling that it was manipulated by the UnitedStates in this case, but regarding this point, we think that some clarification shouldbe made. The O.A.S. resolution creating the Inter-American peace force did notapprove the action the U.S. had taken and said nothing about the dangers ofCommunism (the contrast with the Cuba case is significant) and very little aboutevacuation of foreigners. The objectives of the Force – impartial co-operation inthe restoration of peace and democracy – are rather different from the reasongiven by the U.S. for its original intervention. Furthermore the emphasis of theresolution or impartiality was inconsistent with the United States previous policy ofintervening against the allegedly Communist leadership of the constitutionalsfaction and this can prove that that country was becoming sensitive to criticismprecisely from Latin-Americans and because of its action in the region. Thepattern of O.A.S. autonomy was present but the political elements behind it werechanging.

On the whole, it can be said that, it appears clear that the United Statesperformed great influence in the O.A.S. when it dealt with these cases involvingsanctions but the fact that many Latin-American countries pursued similar policiesshould not be regarded as a consequence arising from some kind of control of the 156 White, loc. cit.; Gómez Robledo, op. cit, p. 370.157 Claude, loc. cit.

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former over the others. Not only the Cold War situation is relevant, but genuineorientation against communism of these many Latin-American countries should beconsidered so as to have a clearer picture. Besides, during the early 1960’s theO.A.S. was more active against Trujillo regime in the Dominican Republic, andless active against the Castro regime in Cuba than the United States would haveliked158. Once and again the U.S. had to soften or refrain from pressing anti-Communist draft resolutions in order to be sure of getting a sufficient majority andeven so there have been dissenting votes, reservations and abstentions.159 As M.Akehurst put it,160 the intervention of the United States in the Dominican Republicin 1965 had to be unilateral because the United States probably had assessed thatit would not have authorization from the O.A.S. and when the latter began dealingwith the situation as we observed above, it pursued aims and proceeded accordingto reasons which were not compatible with those upon which the U.S. hadunilaterally acted. We maintain that the O.A.S., on those basis, had to get involvedand on similar grounds we submit that, also the Security Council had to intervene.As it cannot be criticized the limited role of the latter due to the political constrainswhich it faced, we cannot say that the O.A.S. was glossing over the U.S. action.It is of course largely contested both the legality of the O.A.S. action under theU.N. Charter and the political achievements which it reached, but it cannot bedenied some influence from its part to balance the situation, as it cannot be deniedthat the modest role performed by the Security Council and the activities of therepresentative of the Secretary General contributed also to this end.161 To us,because of the O.A.S. and the U.N. actions, in this case, it was obtained adiversion from exercise of power by a State upon other to a less anti-social courseof action. A less anti-social result is not an ideal one, but is idealism a province ofpolitics?

With the end of the Communist block, emphasis has shifted to the promotion ofdemocracy in the region. Moreover, the imposition of sanctions against Haiti in1991 suggests that with the demise of the U.S.S.R. opposition to the imposition ofeconomic sanctions without the prior authorization of the Security Council seemsto have disappeared, or at least no State has overtly objected to it.162 In fact it isremarkable that no voice was heard, either on the regional level or at the universalone, condemning the O.A.S. for having decided economic sanctions on Haitiwithout previous authorization from the Security Council. So the once-controversial 158 John Dreier, The Organization of American States and the Hemisphere in Crisis, NewYork, 1967.159 Connell-Smith, op. cit. pp. 230 and 248 et seq.160 Akehurst, op. cit. p.226.161 Dupuy, op. cit. pp. 109/110 observes: “L’ONU surmontant la faiblesse de ses moyens,est parvenue à apporter des thérapeutiques, modestes certes mais précieuses, au plus fortde la crise, à suivre de près une situation typique des guerres subversives de la secondemoitié du XX siècle, à dégager les voies formalisées, qui s’ouvrent à elle et qui tendent à laconduire à U.N. contrôle réel des systèmes régionaux, à une époque où la tension dumondial et du local atteint une singulière intensité, du fait de l’univers politique et desbrèches qui s’ouvrent dans des mondes naguère encore protégés par solides clôtures.”162 White, op. cit., p. 211.


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issue of whether regional organizations can impose article 41 sanctions withoutauthorization of the Council has lost considerable ground.163

The Haitian case is an example of co-operation and co-ordination between theuniversal and the regional organization in an unprecedented scale. This case, at thesame time, has highlighted a curious phenomenon: given the ineffectiveness of theRio Treaty, at least since its shortcoming during the Malvinas crisis, the O.A.S.lacks the capability to enforce its measures – if not in theory, at least in practice–.Nowadays the Inter-American System is therefore dependent on the U.N. in orderto apply measures of a coercive nature, in the strict sense.164

Let us finally recall along with Akehurst,165 that the Latin-American supportfor regionalism at the U.N.C.I.O. in 1945 (at a time when unilateral U.S.interventions were more recent if not more frequent) and the mixed feelings of thiscountry (after its clear favouring of a Globalist approach in Dumbarton Oaks) atthis respect, show that Latin-American States were not seeking an Inter-Americansystem dominated by the U.S. in which they would docilely follow the latter. Theyrather considered that a strong Inter-American system was a way to persuade theU.S. to accept the principles of the equality of States in practice. We submit that ifthe deterioration of the U.S. - U.S.S.R. relation to which we referred at thebeginning of this conclusion as of a paramount importance, would not haveoccurred, the existence of such Inter-American System in which the Latin-American countries were the vast majority, had had, possibly in many cases, thevirtue of ensuring such equality vis-à-vis a great power entente in the SecurityCouncil.

This last observation leads us to consider the prospect we could envisage fromthe present as a supplement to the conclusions we have drawn from the past.

3. Prospects

International political relations, including of course political elements relevant toour subject, have undergone a number of transformations and these changes arealso registered within internal politics of countries, including those of the Latin-American countries, being this latter factor not an infrequent occurrence in theregion. It is to be expected that processes of change referred to, will be reflectedin future interplay between the O.A.S. and the U.N., but is to be recognized thedifficulty to predict with some accuracy future institutional responses.

With the end of the Cold War it is right to assume that the relaxation ofinternational relations will preclude, in general, entanglement of regional disputeswith great powers rivalries and having regard to the Latin-American picture it isalso to the be assumed that difference of ideologies should not even generate 163 Id., p. 214164 Marchand Stens, loc. cit.; Merrils, op. cit., p. 284165 Akehurst, loc. cit.

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disputes.

Two models could be considered, both based on the agreement of the greatpowers. A) One leading to a centralization for the settlement of disputes whetherin the Security Council or outside it, but of course with their intervention in thehandling of the matter and B) Another leading to a de-centralization by which thegreat powers, again through decision by the Security council (not necessarilyexplicit) or by agreement taken outside it, they leave the settlement of disputes tothe regional agency and even “allow” (more likely implicitly), if necessary, theapplication by such agency of enforcement measures on the basis of reciprocity. Abehaviour which would be inscribed in a pure exercise of power politics within theframework of spheres of influence.

However, we think that some other political elements are involved in presentinternational relations, such as a trend to multipolarity and the role of the vastmajority of States grouped for reasons of solidarity based on economic factors,political ones, etc. It is a fact that small powers are constantly making necessaryefforts to counterbalance with their common action the influence which in somecases big powers would like to exercise in pursuing their own interests. Thisstrengthening by means of grouping is also to be considered along with theimportance of such medium or even small powers, bilateral relations vis-à-vis withthe great powers, because of economic reasons (i.e. dependence of the latter onnatural resources of the former) or others like strategic factors (i.e. due togeographical position of a given country), etc. Both the grouping, needless to say akey element in international fore, and that individual elements in relevant cases,would also have to be taken into account, as we said above, when consideringthose two possible models.

Having due regard to the previous considerations we would finally like to referto the prospects regarding the handling of those two matters which we havepointed out as the central issues of our work. Namely the one related to peacefulsettlement of disputes and the one concerning the application of enforcementmeasures.

As to the first we find easier to say or rather to emphasize our previousassumption. The “Try O.A.S. First” doctrine has been superseded andconsequently it is expected that free choice of forum to bring their problems beexercised by the American countries, though no explicit recognition of the principlewould be possibly to agree, like it was not possible to agree upon recognizing “TryO.A.S. First” as a principle. Panama in 1973 deemed more appropriate to referthe issue of the Panama Canal to the Security Council, but that does not mean thatdirect resort to that organ will always be sought. We think that depending on thematter, the States involved, etc., Latin-American countries will make the choiceaccordingly. For instance in question related to the exercise of maritime jurisdictionby a Latin-American country over a relatively broad area of sea adjacent to itscoast, which caused a dispute with the U.S., it is more likely that if the matter is to


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be referred to one of the two international organizations, the Latin-Americancountry might well prefer the O.A.S. where a vast majority can rally its supportfor him. The U.S., on the contrary, would rather have the Security Councilinvolved since there will count not only on its veto but also on the co-operation ofthe rest of the Permanent members (with the exception of China) and other Stateswhich because of their particular position on this subject despite their political oreconomic alignment would also support the U.S. or at least would refrain fromsupporting the Latin-American country. As an opposite case it may also bepreferable for a Latin-American country (as it was for Panama in 1973) to take itsdispute to the Security Council because, being this a world-wide forum offersgreater propaganda possibilities as well as abilities to form greater coalitions withcountries of the third world, of far more significance than a Latin-American one.The U.S., in turn may will in some cases (if not in many) prefer to keep disputeswith Latin-American countries both out of the O.A.S. and out of the U.N., since inboth organizations may have to face vast opposing majorities. Summing up,depending on the matter, the States involved, the opportunity and other relevantfactual elements, the dispute will be referred indistinctly to the O.A.S. or to theU.S. Security Council by the party or parties willing to seek multilateralinvolvement.

In respect to enforcement measures, the picture is not so clear. Let us say thatwe can only predict a handling based on pragmatic basis, depending on theelements involved (both from regional and a global perspective), to which we havereferred previously. It seems to us that it is not likely that the O.A.S. will renounceto the possibility of exercising autonomy in this field as a principle, but it may do sodepending on the case by simply taking no action and leaving the case to theSecurity Council or to the exercise of individual or collective self-defense.166

It also seems to us that in the same manner the Security Council will notrenounce expressly to the principle of requiring authorization by the regionalagency to apply enforcement measures by distorting it, but also it is to be expectedthat it will not be able to agree on a definition of such measures and other relatedquestions. Again pragmatic grounds will be the indicators within the global andregional political spectrum that we have tried to describe.

Let us finally point out that, according to some authors, “delegation of ChapterVII powers to regional arrangements is a desirable process, since it can lead tomilitary enforcement action being taken on behalf of the Security Council toachieve the Council’s stated objectives”.167 In fact, according to formerSecretary-General Boutros-Ghali in his well-known Agenda for Peace, animportant reason for the use of regional arrangements in such a role is that theprocess contributes to “a deeper sense of participation, consensus and

166 It is to recall that the O.A.S. has never invoked this right provided in Article 51 of theU.N. Charter as basis for its action.167 Sarooshi, op. Cit., p.282.

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democratization in international affaires.168 However, it may very well be doubtedto which extent regional arrangements have the capability or internationallegitimacy to carry out such military enforcement action. Indeed, as it has alreadybeen mentioned, the OAS is in practice unable to actually apply enforcementaction. In consequence, any enforcement action taken at the Inter-American levelseems to be unavoidably dependent both on the UN and the US, as the Haitiexample has clearly shown. In any case, it seems to us that to state a general rulein this respect would rather signify to adventure an opinion than to state aprospect.

168 Boutros Boutros-Ghali, An agenda for Peace, UN Publications, 1992. Para.64.


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